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A TREATISE
ON THE
LAW OF SEDITION
AND
COGNATE OFFENCES
BRITISH INDIA,
PENAL AND PREVENTIVE,
WITH
AN EXCERPT OF THE ACTS IN FORCE RELATING TO THE
PRESS, THE STAGE, AND PUBLIC MEETINGS.
WALTER RUSSELL DONOGH, M.A.,
Of'.the Inner Temple, Barrister-at-Law,
AND AN Advocate of the High Court at Calcutta,
Author of A Manual on the Indian Stamp Law.
SALUS REIPUBLIC/E SUPREMA LEX
CALCUTTA :
THACKEk, SPINK & CO.
191 1
PRINTED BY
tCHACKBR, SPINK AND COMPANY, CALCUTTA.
" If men should not be called to account for possessing
the people with an ill opinion of the Government, no
Government can exist." — Lord Holt.
" If a publication be calculated to alienate the affec-
tions' of the people by bringing the Government into
disesteem, whether the expedient be by ridicule or
obloquy, the person so conducting himself is exposed to
the inflictions of the law." — Lord Ellenborough.
3023589
PREFACE.
If an apology be needed for the production of a work of
this character, it might be possible to justify it on
two grounds. One is the prominence which political
offences of this type have assumed in India ; the other, the
importance of the preventive legislation recently introduced
■on the Statute-book, which, without prejudice to previously
existing measures in pari materia, aims at a better control
of the Platform and the Press.
Either would afford a valid pretext for the existence
of a trejitise which purports to combine, in a convenient
form, two branches of the law which are closely related.
The present work has been designed to accomplish this
object. Its aim is to provide a complete handbook of the
law on the subject — penal and preventive — for the use
not only of those who may be called upon to apply its
principles, but also for those who desire a more intimate
acquaintance with the subject — a handbook, in short, for
both lawyer and layman.
W. R. D.
Calcutta,
1st January, 1911.
COMENTS.
PART I.
PENAL LAW.
CHAPTER I.
Origin and History of the Law.
Page.
Macaulay's draft Penal Code — Sir Barnes Peacock's revised Code —
His letter to Mr. JMaine — Sir James Fitzjames Stephen's Speech
in Council — Exposition of the Statute Law as to Sedition — Com-
parison of proposed measure — Remarks on 'liberty of the Press' —
Remarks on Journalism — The law of Sedition as framed by Act
XXVII of 1S70 .. .. .. ,. 1—9-
CHAPTER IT.
Sedition at Common Law.
As defuied by[Sir James Stephen — Definitions in ' Russell on Crimes'
— Sullivan's case — Lord Fitzgerald's charge to Jury — His Defini-
tion of Sedition — Dicia of Lord Mansfield, Lord Kenyon, and Sir
Michael Foster — Character of the offence explained — Remarks on
the functions of juries — ' Liberty of the Press' — Limits of politi-
cal criticism — Seditious writings, prints, language — Liberal con-
struction and generous verdicts desirable — Pigott's case — Baron
Deasy's charge to Jury — Remarks on Journalism — Freedom of dis-
cussion- — Limits of fair criticism . . . . . . 10 — 20'
CHAPTER IIL
Sedition at Common Law — contd.
Trial of .John Burns — Justice Cave's charge to the Jury — Defini-
tion of ' Seditious Words ' — Wiiat is not Sedition — ' Seditious in-
tention' — Maxim of Lord Tenterden — Dictum of Lord Kenyon —
Diclum of Lord Fitzgerald — Language as the index to intention
— ' Seditious coirspiracy ' — Seditious meetings — Criminal liabi-
lity of speakers and audience — Sedition against the King, or the
Government — Divers meanings of the term Government — Lord
Holt's conception — Lord Ellenborough's conception — Modern
conception in England — Difference in India .. ..21 — 32"
VIU CONTENTS.
CHAPTER IV.
The Law in Operation — The First Trial.
Page.
The ' Bangobasi case ' — Age of Consent Act — Passing of the Bill —
Speech of Mr. Nugent on the public agitation — Necessity for le-
gislation explained — Speeches by Sir A. Scoble, Sir G. Evans, and
Rao Bahadur Nulkar — Speech by Lord Lansdowne — The Ban-
gobasi Bxt\c\Q% — Arguments of Counsel — Sir C. Petheram's charge to
Jury — His Definition of 'disaffection '—He distinguishes disap-
probation — His directions as to class of readers, class of paper,
intention of writer, proof of intention — Government of India
defined .... .. .. ... ••'33 — 41
CHAPTER V.
Some Notable Trials.
Tilak's case — Incidents of the trial — Seditious articles in Kesari —
Arguments of Counsel — Murders at Poona referred to — Justice
Strachey's charge to Jury — Section 124A explained — ' Disaffec-
tion ' defined — Directions as to attempt, intention, meaning —
Language as an index to motives — Distinction between language
of hostility and that of loyalty — Value of the charge as an exposi-
tion of the law— Endorsed by the Privy Council — Cited by other
High Courts — A compendium of law and practice . . . .42 — 50
CHAPTER VI.
Some Notable Trials — contd.
* Satara case' — Seditious article in the Prntod — Sit C. Farran's com-
ments — Views of Justices Parsons and Ranade — Value of the Full
Bench decision as an exposition of the law — ' Disaffection ' ex-
plained by Sir C. Farran, and Justices Parsons and Ranade — The
' explanation ' to section 124A criticised— The Allahabad case of
Amba Prosad — Facts of the case in judgmeno of Full Bench —
' Disaffection ' defined and the law explained — The ' explana-
tion ' condemned — The result of the four trials reviewed and
judicial dicta summarised .. .. .. ..r>l — .o9
CHAPTER VII.
The Law Amended.
The reasons for the amendment — Speech by the Law Member — Alter-
native lines of action — Defects in the penal law — The four notable
trials referred to — Judicial interpretation of the section stated —
.Sir James Stephen cited — Necessity for plainer language — No
CONTENTS. IX
i'AGS.
change in the principles of the law — Merely a re-statenient in ac-
cordance with consentient judicial authority — The proposed
.clause enunciated — Promoting class hatred included — Changes
made by the Select Committee — Opposition to Bill — Difference
in English and Indian conditions pointed out — Speeches by the
Lieutenant-Governor of Bengal and Sir G. Evans — State of the
Indian Press since repeal of Press Act in 1882^ Reluctance of the
Government to resort to preventive legislation — Remarks of Mr.
Chalmers and the President, Lord Elgin . . • • 60 — 70
CHAPTER VIII.
What is Sedition.
The new section 124A — No change in the law — Modifications ex-
plained — The meaning of Sedition^ — ' Disaffection ' not defined in
the section — Reason for this — Meaning of term ' disaffection ' —
Not the converse of affection — Disloyalty distinguished — Sedi-
tion defined — Object of introducing the terms ' hatred ' and
' contempt ' — ' Feelings of disaffection ' judicially explained —
Views of Sir C. Petheram, Sir C. Farran, Sir John Edge, Sir L.
Jenkins and Justices Strachey, Parsons, Ranade and Batty-
Methods of exciting ' feelings of disaffection ' specified in section
124A — Publication essential to constitute an offence— Mere writing
of seditious words is not enough — Sedition in innuendo —
The attempt is as rnuch an offence as the act — Difficulty of proving
results — Attempt defined — ' Intention ' necessarj' though not
specifically mentioned — Language and conduct as a guide to the
intention — Views expressed by Sir C. Petheram, Sir L. Jenkins,
and Justice Strachey — Dicta of Lord Tenterden and Justice Best
— ' Intention ' explained by Sir John Edge — Justice Batty's con-
struction of the term ' Government ' — Views of Justice Strachey —
The older conception of the term in England compared ..71 — 83
CHAPTER IX.
Criminal Liability.
Taking part in the dissemination of seditious matter — Rules as to
joint liability — Dictum of Sir C. Petheram, C. J. — Views of Justice
Strachey — Effect of registration under Press Act of 1867 — Rule
when publication is admitted — when publication is denied — Re-
marks of Sir C. Farran, C. J., in ' Satara case ' as to liability of an
editor — As to a declared printer and publisher acting negligently
—The Madras ruling on Act XXV of 1867— Effect of Lord Camp-
bell's Act in England — Rule laid down for India — Remarks of
Sir L. Jenkins, C. J., in Luxman's case as to liability of sub-editor
and writer — His remarks in Vinayek's case as to printei's and
X CONTENTS.
Page»
publishers — Remarks of Justice Batly in Ehaskar's case on the
same — Views expressed in the Bande Mataram case by an appel-
late bench — Remarks on efficacy of Registration in Jugantar case
— Remarks in the Rungpur Bartnbalui appeals — Publication an
essential element in the offence — Lord Esher's illustration of inad-
vertent publication — Mr. Mayne's remarks on the same — Liability
of booksellers and news vendors — Almon's case — The sale of ' Ju-
nius's Letters ' — Lord Mansfield's rule as to a bookseller's liabi-
lity — Principle of Loid Campbell's Act — Liability of news ven-
dors — Liability of libraiians — Rule as to innocent dissemina-
tion . . . . . . . . 84 — 9T
CHAPTER X.
What is not Sedition.
The object of the Explanation to section 124A — Effect of the modifi-
cations introduced in 1898 — Observations of Justice Strachey
on foimer provision — Protection limited to ' comments ' — Differ-
ence between exciting ' disapprobation ' and exciting ' disaffec-
tion '—Observations of Sir L. Jenkins — Remarks of Justice Battj^
— A plea of truth is no defence to a seditious libel — Observa-
tions of Sir L. Jenkins and Sir John Edge — Rule of construction
laid down by Lord Fitzgerald, cited by Sir C. Petheram — The
correct method of treating isolated passages in a seditious article
— The proper use of characteristic or particular phrases — The ob-
ject of admitting collateral matter — The rule applies to speeches,
and lectures as well as to articles— Applied to a book of poems —
Views expressed in the Knrmajogin case — The proper value of
translations from the vernacular — Views of Justice Strachey on
free and literal translations— Conclusions deduciblc therefrom 08 — HO
CHAPTER XI.
Incidents and Rules of Practice.
Rule as to seditious matter reproduced from other publications —
Observations of Lord Fitzgerald — Doctrines enunciated in the
Bande Mataram case— Rules to be observed in estimating the
effect of seditious matter — Directions by Justice Stracliey — View.*
expressed by Mr. Mayne — Approved by the Madras High Court
— The question of Punisliment— Directions by Sir C. Farran, C. J.
— Remarks of Sir Jolm Edge, C. J. — The real tesr applicable to
all cases — Limits imposed by Criminal Procedure Code — Sanc-
tion of the Covernment necessary — Amount of proof considered
sufficient in Tilaks case — Remarks of the Full Bench in Bombay
case — Remarks of Sir A. White, C. J. — Other safeguards provided
by the Legislature — Further incidents of the offence 111 — 121
CONTENTS. XI
CHAPTER XII.
Abetmknt of Sedition.
Page.
The general provisions of the Penal Code applicable — Three ways of
abetting an act — An abettor is an accessory before the fact — No
provision for an accessory after the fact — Abetment as defined in
the Code — Definitions in ' Russell on Crimes ' and Mayne's ' Cri-
minal Law ' — Definitions by Justice Willes, Justice Grose and
Sir James Stephen — Tlie leading case of abetment by conspiracy
— The meaning of ' Swaraj ' discussed — Incidents of tlie case of
Chidambaram Pillai — Abetment by aid illustrated in the case of
Lealcut Hossein a,nd Abdul Otiffur .. .. ]22 — 135
CHAPTER XIII.
The Later Cases.
The first trials after the amendment of 189S — Articles in tlie (rurakhi,
a Bombay newspaper — Comments of Sir L. Jenkins in Liixman's
case — The article ' A white man's gun ' — Comments of Sir L.
Jenkins thereon in Vinayek's case — The trial of Bhaskar — Article in
the Bhala published at I'oona entitled ' A Durbar in Hell ' —
Justice Batty"s comments tiiereon — Case of the Bande Mataram of
Calcutta — The article entitled ' Folitics for the Indians ' — Com-
ments of tile High Court thereon — The Jugantar case — Trial of the
printer and charge to the Jury — Judicial comments on the
seditious articles .. .. .. 130 — 149
CHAPTER XIV.
The Later Cases — contd.
Book of Poems entitled a ' Short series for new India ' — Judicial
comments on the character of the book — The Rungpur Bartabaha
appeals — The articles charged — Inaccurate translations — Judicial
comments on the articles — Liability of an absent printer — The
Karmajogin case — The ' open letter ' of Arabindo Ghose entitled
' To my Gountrymen ' — Comments of Justice Fletcher thereon 150 — 162
CHAPTER XV.
Cognate Offences.
The ofiEence of ' Promoting class hatred ' originally considered i a
form of sedition as in England — Reasons for the [separation by
the Select Committee — The new section introduced as section
153A — Its close affinity with section 124A — Numerous inci-
dents in common — The law of Abetment appHes to both equally
— ^Rules of procedure common to both — Cases under section 153A
xii CONTENTS.
Pagk.
Difficulty of proving the offence hitherto — The Cognate offence
of ' Circulating Mischievous Reports ' — Defects in former sec-
tion 505 — The necessity for amendment — Important modifica
tions made in the ' Exception ' — The new section 505 — The case
of Manbir under cl. (6)— Strong affinity between d. (c) and section
153A — Rules and incidents of procedure common to both the Cog-
nate offences . . . . . . 163—173.
PAET 11.
PREVENTIVE LAW.
CHAPTER XVI.
Ortgint and History of Preventive Measures.
Causes which contributed to produce the first measure — Sir Thoma*
Munro's celebrated minute on the Indian Press — The preventive
legislation of 1823 based on a system of licenses — The main provi-
sions of the various Ordinances and Regulations — The repe.\l in
1835 and substitution of the system of registration now in force —
Reasons for the repeal as stated in the minutes of Sir Charles
Metcalfe and Mr. Macaulay — The minute of Mr. Prinsep predicting
the possibility of future legislation^The main provisions of the
Press Act of 1835 — The Indian Act modelled on an English Sta-
tute — The legislation of 1857 — Speech of Lord Canning on the ne-
cessity for legislation — Observations on the Native Press — Re-
marks of Sir .James Colvile and Mr. Peacock — The purport of
the Act of 1857— The legislation of 1867— Remarks of Mr. Hob-
honse — The main provisions of the Act — The Stage legislated
for in 1876 — Remari;s by Mr. Hobhouse on the Dramatic
Performances Act . . . . . . 174 — 188
CHAPTER XVII.
Later Preventive Measures.
The Vernacular Press Act of 1878 — Circumstances which led to it —
Speech of Sir A. Arbuthnot in justification of the measure — The
inefficiency of the Penal Law of Sedition — Tlie character of a
certain section of the Indian Press — The necessity for preventive
measures — Speech of Sir Charles Paul, Advocate- General of Ben-
gal — Remarks of Sir G. Evans, Sir Ashley Eden, and Sir John
CONTENTS. XIH
Page.
Strachey on the Vernacular Press — Observations of Lord Fitz-
gerald cited from the charge in Sullivan's case — Lord Lytton's
exhaustive speech — His views on the Press as an institution in
India — Its alien characteristics and uncongenial surroundings —
' Liberty of the Press ' a meaningless phrase — The necessity for con-
trolling the sale of poisonous matter — The analogy of Lord Camp-
bell's Act — Repudiation of the suggestion as to class legislation
— Distinction not drawn between Europeans and natives — Only
the vernacular papers afl'ected, and not native papers published
in English . . . . . . . . 189—202-
CHAPTER XVIII.
Later Preventive Measures — co7itd.
The Vernacular Press Act amended — Reason for the amendment —
Statement by Sir A. Arbuthnot as to. the operation of the Act for
seven months — Results eminently satisfactory — Speech by Lord
Lytton — Statement as to approval of Secretary of State and rati-
fication of Parliament — Repeal of the Act — Speech by Sir W.
Hunter — Reasons tor the repeal — Remarks of Lord Ripen — Conse-
quences of the repeal — Statements by Sir A. Mackenzie and
Sir G. Evans — Position in 1898 as described by the Law Member
— Preventive measures of that year — Section 108 of the Criminal
Procedure Code — Scope and object of the provision — Remarks
by the Law Member- -Modifications by the Select Committee —
Amendment and remarks by Sir G. Evans — Decision of the Cal-
cutta High Court on the section — Various meanings given to the
term Stvaraj — Decision of the Bombay High Court — Views of
Justice Chandavarkar of Bombay — Correct ^lethod of recording
speeches .. .. .. 203—216
CHAPTER XIX.
Recent Preventive Legislation.
Act to prevent seditious meetings — -Speech by Sir H. Adamson — The
Ordinance preceding the Act — Necessity for legislation explained —
Scope of the measure and objects contemplated — Policy of
' drift ' and the evils attending it — Remarks by Sir E. Baker —
'Remarlcs by the President Lord Minto — The Bill for prevention
of incitements to murder — Speech by Sir H. Adamson — State-
ment as to the condition of the country and the necessity for con-
trolling the seditious section of the Press — Scope of the measure
and objects aimed at — Speech by Lord Minto — His views as to the
urgent necessity for a general Press Act . . 217 — 228'
31V CONTENTS,
CHAPTER XX.
The Latest Press Law.
Page.
The Bill for the ' better control of the Indian Press ' — Speech by
Sir H. Risley — Scope of the measure — Its procedure explained —
Objects aimed at, and methods provided — Limitations and checks
introduced — Summary of Press legislation in India — State of the
Press in 1877 — Statement of Sir Ashley Eden — Extreme for-
bearance of the Government — Notification of 1907 — Prosecutions
for sedition — The character of the seditious writing and doc-
trines propounded — Political assassination and rebellion advocated
— Long score of murders and attempted murders consequent on
such teaching — Urgent need for legislation — Importance of the
speech — The Press Act of 1910 in relation to other laws, penal
and preventive . . . . . . 229 24u
APPENDIX.
Press and Registration of Books Act, 18G7 — Dramatic Perfor-
mances Act, 1876 — Security for good behaviour, sec. 108 Criminal
Procedure Code, 1898 — Prevention of Seditious Meetings Act,
1907 — Newspapers (Incitements to Ofiences) Act, 1908 — Indian
Press Act, 1910 .. .. .. 241—271
PAET I.
PENAL LAW.
CHAPTER I.
ORIGIN AND HISTORY OP THE LAW.
The oriqia of this provision and the history of its introduc-
tion into the Indian Statute Book is both interesting and im-
portant. In 1837 it existed in gremio, as one of the clauses
of Macaulay's draft Penal Code. That Bill, strange to say, was
shelved for more than twenty years, and when at last it saw the
light in 1860, the sedition clause for some unaccountable reason
had been omitted. It was not in fact till 1870, ten years later,
that the want of such a provision in a complete Code of Crimes
came to be' recognised, with the result that a Special Act (XXVII
of 1870) was passed by way of amendment to the Penal Code,
introducing Macaulay's original clause practically unaltered,
thirty-three years after its conception.
Sir James Fitzjames Stephen, when introducing this Bill
to amend the Penal Code, on the 2nd of August 1870, observed
that the provision in question " was one which, by some unac-
countable mistake, had been omitted from the Penal Code as
ultimately passed. It stood as section 113 in the draft Code
published in 1837, and Sir Barnes Peacock was quite unable
to account for its omission when the Code was enacted. It
punished ' attempts to excite feelings of disaffection to the Gov-
ernment,' but it distinguished between disaffection and disap-
probation, and explained that ' such a disapprobation of the mea-
sures of the Government as was compatible with a disposition
to render obedience to the lawful authority of the Government,
and to support the lawful authority of the Government against
unlawful attempts to subvert or resist that authority, was not
disaffection, ' so that ' the making of comments on the measures
D, LS 1
2 THE LAW OF SEDITION.
of the Government with the intention of exciting only this species
of disapprobation' was not an offence within this section."
On a subsequent occasion (25th November 1870), when
presenting the report of the Select Committee, the Hon'ble
Member once more reverted to the subject. In repudiating
a suggestion that the Bill had been hastily drawn, he referred
to a letter written by Sir Barnes Peacock to Mr. Maine his pre-
decessor, on the subject of the omission of Macaulay's clause
from the Code. In that letter Sir Barnes Peacock had said —
* ' I have looked to my notes and I think the omission of a section
in lieu of section 113 of the original Penal Code must have occur-
red through mistake, though I have no distinct recollection of
it. After the original Code had been carefully revised, the ori-
ginal Code and the revised Code were printed in double columns.
I send herewith a copy of the section proposed in the revised
Code to be substituted for section 113." And he concluded
his letter with the remark : " I am sorry that I cannot throw
any further light upon the matter, as I have no note as to the
adoption or rejection of that clause. I feel, however, that it was
an oversight on the part of the Committee not to substitute
some section for section 113." Commenting on these facts Sir
James Stephen thought that the letter was ' ' as strong evidence
as it was possible to obtain for the assertion made by him that
there was a section to the present effect, which ought to have
been submitted to the Council and to have been passed, and
that it was omitted through a mistake or oversight which it was
difficult now to account for. He had referred to the debates
which took place in the Council, but there was no reference
in those debates to any such provision. The result seemed to
him to be clear, that when a Bill was finally passed through the
Committee, a section equivalent to the present section was
omitted by some mistake."
" In an event of this kind," he asked, " what was the duty
of the Government ? It was to repair the omission, whoever
might have been to blame for it. " He then proceeded to explain
that the Select Committee had anxiously considered the section
drawn by Sir Barnes Peacock, when he was Law Member, which
had been appended to his letter as the provision ' ' proposed to be
substituted for one which appeared in the original draft of the
OKIGIN AND HISTORY OF THE LAW. 3
Code." " The Committee," he added, " with all respect to
Sir Barnes Peacock, came to the conclusion that it was not an
improvement on the original draft. For one thing, it was very
much more severe.^'' He then quoted the rejected section to
demonstrate the fact. It is unnecessary to cite the provision
here, but it will be sufficient to note the somewhat remarkable
circumstance that the highly judicial mind of the most emi-
nent of Indian judges should have conceived a more drastic pro-
vision than the illustrious biographer of Warren Hastings and
Clive.
Referring to the adopted clause Sir James Stephen added
that " although he was not prepared to say that it was the best
that could have been adopted, the Committee unanimously
came to the conclusion that the best course was to leave it as the
Commissioners had settled it. ' '
" The clause," he continued, "was somewhat lengthy,
but its substance was sound good sense. It provided that any
body who attempted to excite disaffection might be punished,
but it insisted on the distinction between disaffection and dis-
approbation. It expressly provided that people might express
or excite disapprobation of any measure of the Government
that was compatible with a disposition to render obedience to
the lawful authority of the Government ; in other words, you
might say what you liked about any Government measure or
public man ; you might publish or speak whatever you pleased,
so long as what you said or wrote was consistent with a dis-
position to render obedience to the lawful authority of Govern-
ment."
He next proceeded to assert that ' ' this law was substantial-
ly the same as the law of England at the present day, though it
was much compressed, much more distinctly expressed, and
freed from a great amount of obscurity and vagueness with which
the law of England was hampered."
He then went on to state how the law of England stood on
this subject. ' ' It consisted of three parts. There was first the
Statute, commonly called the Treason-Felony Act (11 Vic, c. 12) ;
secondly, the Common Law with regard to seditious libels ; and
thirdly, the law as to seditious words. He might observe in
regard to this law that section 2 of the Penal Code enacted that
4 THE LAW OF SEDITION.
every person shall be liable ' to punishment under this Code
and not otherwise for every act or omission contrary to the pro-
visions thereof.' Hence the criminal law which prevailed before
the passing of the Penal Code was still in force as to such offences
as the Code did not punish. The result might very possibly
surprise some gentlemen, especially those who were connected
with the Press in the presidency towns, and he would draw
attention to it. In the presidency towns the Criminal law of
England was still in force, except in so far as it was superseded
by the Penal Code. Any person who within the Mahratta ditch
or in Bombay or Madras wrote anything which at Common Law
would be a seditious libel would be liable to the penalties which
the law of England inflicted, which were fine and imprisonment
at least, to say nothing of whipping and the pillory. No doubt
the penalties last mentioned would not now be enforced, but the
law still existed, and he wished to point out that, so far from
enacting a severe law they were, in truth, doing away to a
considerable extent with severe laws. As for the Mofussil, it
appeared that the Muhammadan Criminal law prevailed so far
as it was not superseded by the Penal Code. He had tried
to ascertain what the Muhammadan law was. He had found
nothing on the subject of seditious libel, but had found much on
the subject of rebellion, which however was so vaguely expressed
that it might possibly justify the infliction of very strange
penalties for sedition and libel." Such were the dangers that
beset the path of the unwary journalist, prior to 1870.
The further observations of Sir James Stephen on the law
of England as then adapted to the exigencies of India are also
of much weight. Section 3 of the Treason-Felony Act (1848)
was as follows : — " And be it enacted that if any person what-
soever after the passing of this Act shall, within the United King-
dom or without compass, imagine, invent, devise or intend to
deprive or depose our most Gracious Lady the Queen, Her heirs
or successors, from the style, honour, or royal name of the Im-
perial Crown of the United Kingdom, or of any other of Her
Majesty's dominions and countries, or to levy war against Her
Majesty, her heirs or successors, within any part of the United
Kingdom, in order by force or constraint to compel her or them
to change her or theii- measures or counsels, or in order to put
ORIGIN AND HISTORY OP THE LAW.
any force or constraint upon or in order to intimidate or overawe
both houses or either house of Parliament, or to move or stir any
foreigner or stranger with force to invade the United Kingdom^
or any other Her Majesty's dominions or countries under obei-
sance of Her Majesty, her heirs or successors, and such compass-
ings, imaginations, inventions, devices, or intentions, or any of
them, shall express, utter, or declare, by publishing any print-
ing or writing, or by open and advised speaking, or by any overt
actor deed, every person so offending shall be guilty of felony,
and being convicted thereof shall be liable, at the discretion of
the Court, to be transported beyond the seas for the term of his
or her natural life, or for any term not less than seven years, or
to be imprisoned for any term not exceeding two years, with or
without hard labour, as the Court shall direct."
That in plain English meant that " any one who conceived
in his heart any one of all these intentions, and who showed
that intention either by any act or any writing was liable to trans-
portation for life. " This clearly showed that of the two " the
law of England was more severe. " " The proposed section saysj
if you excite feelings of disaffection, either by speaking or writ-
ing, you shall be liable to punishment ; and the law of England
says, in substance, that if you yourself feel disloyal towards the
Queen and show that feeling by any writing, you shall be liable
to punishment. The proposed section did not relate to a man's
feelings or wishes, but simply to his writings or words, and the
feelings which they were intended to produce in others. But
the great peculiarity of the English law of treason was to regard
every thought of the heart as a crime which was to be punished
as soon as it was manifested by any overt act. That was the
English law as it stood according to the Treason-Felony Act."
After such a lucid exposition of the Statute law of England
and its analogy to the proposed measure, it is to be regretted
that the learned jurist did not proceed to expound the principles
of seditious libel in the Common Law, and trace their analogy
in the same manner. But he merely added that " in the book
which was commonly quoted on all subjects connected with
English Criminal law (Russell on Crimes), there was a very
long history about seditious libel compiled from various author-
ities. The law Was very vaguely expressed, and he hoped that
6 THE LAW OP SEDITION.
some one might soon reduce to a few short sentences the great
mass of dicta on the subject. "
Whether the vagueness of expression complained of was
reflected in the proposed measure, or the great mass of judicial
dicta which adorn the English State trials created unforeseen
difficulties it is impossible to say. But the fact remains that
shortly after the new law began to operate and was brought to
the test of concrete cases, though that was not till more than
twenty years later, it was found necessary to amend it.
The Hon'ble Member next addressed himself to the various
objections that had been raised in derogation of the Bill, and his
observations on its probable effect on the freedom of the Press
are terse and forcible. " There was one last objection to which
he would refer in a more general way. It was the general phrase-
that this was an interference with the liberty of the Press. Short
phrases of this kind involved a surprising quantity of nonsense.
He thought that that unfortunate phrase in particular had been
made the subject of more fallacies than almost any other sen-
tence. Liberty and law simply excluded each other : liberty
extended to the point at which law stopped : liberty "was what
vou might do, and law was what you might not do. To advocate
the liberty of the Press absolutely would be nothing else than to
advocate the doctrine that everybody should be allowed to write-
what he liked. That was obviously absurd. Everybody ad-
mitted that personal slander ought not to be permitted. Hence
the phrase ' liberty of the Press ' was mere rhetoric. It con-
tained ao definite meaning whatever. The question was not
whether the Press ought or ought not to be free, but whether it
ought to be free to excite rebellion. He did not believe that any
sane man would say in so many words that all people ought to
commit any crime whatever, so long as they did not commit
overt acts themselves ; but no degree of liberty short of this would
justify a journalist or any one else in exciting people to commit
rebellion. "
" Journalism," he continued, " when properly conducted,
was as honourable a pursuit as any other. He could not
imagine a worse policy than to permit journalists to do what
they would not permit other people to do. If we wished the
Indian Press to be what it ought to be ; if we wished it to be con-
ORIGIN AND HISTORY OF THE LAW. 1
ducted honestly, and to criticise tlie proceedings of Government
fairly ; we could not do worse than treat it like a spoiled child.
It would be monstrous to say to any newspapers, native or
English, ' we permit you to slander private persons and to
excite the public at large to rebellion and massacre, because we
want to nurse you up into something great.' That was not
the way to bring the Press or any other profession to good. We
should protect them so long as they did not commit crime, and
punish them if they did. It had been said that a few prosecu-
tions would crush the native Press, and that they were not strong
enough to bear the possibility of being misunderstood and
punished for expressing intentions which they had never enter-
tained. Such apprehensions appeared to him contemptible.
Men must be content to take the risks incidental to their
profession. A journalist must run the risk of being misunder-
stood, and should take care to make his meaning plain. If his
intentions were really loyal there could be no difficulty in doing
so. If not, he could not complain of being punished."
He then went on to consider whether such a danger really
existed. '' One paper had said, ' If this law passes, we shall
never know what we might say and what we might not.' If
they wanted to see what they might say, all they had to do was
to read the English newspapers, which were published under
the same law, and they did not write very much as if they were
under tyrannical rules. Their liberty included the following
items at least. They might refute any thing which had been put
forward and abuse anybody for bringing it forward ; and if they
wanted to see more particularly what sort of things they were
perfectly at liberty to say, they had only to refer to the files of
the English newspapers printed during the last eight months,
and read the articles on the Income-tax. Nobody ever said or
thought that the authors of those articles were exciting disaffec-
tion. So long as the English papers in this country published
what they did publish, about every man, every measure, every
principle which they thought it right to discuss, the native
papers need not be under the smallest apprehension that they
would fall under the pale of the law. He would appeal to any-
body who knew what English public life was, whether any Gov-
ernment which existed in this country was ever likely to bring
8 THE LAW OF SEDITION.
a newspaper published in this town into Court on a charge Oi
exciting sedition for mere discussion, however violent, persona'
or unfair."
The concluding remarks of the Hon'ble Member on thits
point are equally forcible. To his mind the position was per-
fectly clear. There was not the slightest danger of any one who
honestly meant to be loyal, infringing the law unwittingly. " So
much with regard to what people might say. He would nov.-
state what they might not say. They might not say anything of
which the obvious intention was to produce rebellion. It might
be difficult to frame a definition which would, by mere force of
words, exactly include the liberty of saying all that you meant
to allow to be said, and exclude the liberty of saying all that you
did not mean to allow to be said. But although there was consi-
derable difficulty in framing a definition of the kind, there was
none whatever in drawing the line for yourself. Every man
who was going to speak, every man who was going to write,
ought to know perfectly well whether he intended to produce dis-
afiection. If he did, he had himself to thank for the conse-
quences of his acts : if he did not, he was quite sure of this, that
no words which that man could write would convey to other
people an intention that he did not intend to express. He
did not believe that any man who sincerely wished not to excite
disaffection ever wrote anything which any other honest ma/i
believed to be intended to excite disaffection."
" You could no more mistake the severity of criticism, or the
severity of discussion, for the writing of a person whose object
was to produce rebellion or excite disaffection against the Gov-
ernment than you could mistake the familiarity of friendship
for the familiarity of insult. Try to define what it was that
made a difference between that neglect of ceremony which you
expect from a friend, and that neglect of ceremony which was
intended for insult, and you would be unable to express it in
words. But no one could mistake the two things, and it was
the same with exciting political disaffection."
The Bill then passed into law as Act XXVII of 1870, an
Act to amend the Indian Penal Code, The provision relating
to sedition is contained in section 5, and is as follows : —
ORIGIN AND HISTORY OF THE LAW. 9
" Whoever by words, either spoken or intended to be read,
or by signs, or by visible representation or otherwise, excites
or attempts to excite feelings of disaffection to the Government
established by law in British India, shall be punished with trans-
portation for life or for any term, to which fine may be added,
or with imprisonment for a term which may extend to three years,
to which fine may be added, or with fine.
Explanation. — Sucli a disapprobation of the measures of
the Government as is compatible with a disposition to render
obedience to the lawful authority of the Government, and to
support the lawful authority of the Government against unlawful
attempts to subvert or resist that authority, is not disaffection.
Therefore the making of comments on the measures of the Gov-
ernment, with the intention of exciting only this species of dis-
approbation, is not an offence within this clause. '
Section 13 of the Act made Chapter IV (General
Exceptions), and Chapter V (Abetment) of the Penal Code
applicable to the offence. It also applied Chapter XXIII
(Attempts to Commit Offences), but with what object it is
difficult to see, for the section itself provides for attempts.
Section 14 provided that no charge of such an offence should
be entertained by any Court unless the prosecution be instituted
by order of, or under authority from, the Local Government.
The law of sedition thus inaugurated on the 25th November
1870, continued in force unmodified till the 18th February
1898, a period of twenty-seven years. It will be necessary to
consider how it operated during this long period, but before doing
so, it seems desirable to interpose a short summary of the law
of sedition in the Common Law, a subject which was left
untouched by Sir James Stephen in his speech in Council.
CHAPTER II.
SEDITION AT COMMON LAW.
It has been seen that Sir James Stephen, in his memorable
speech in Council in support of the Bill, referred to "a very
long history about seditious libel compiled from various authori-
ties," in a well-known work entitled " Russell on Crimes,""
and at the same time expressed a hope " that some one might
soon reduce to a few short sentences the great mass of dicta on
the subject."
Strangely enough the hope thus casually expressed
was fulfilled by the learned jurist himself not long after.
Seven years later his ' ' Digest of the Criminal Law ' ' of England
appeared, wherein he defined, " in a few short sentences," the
offence of sedition at Common Law. His definition was as fol-
lows : — " Every one commits a misdemeanour who publishes ver-
bally or otherwise any words or any document with 3, seditious
intention. If the matter so published consists of words spoken,
the ofience is called the speaking of ' seditious words.' If the
matter so published is contained in anything capable of being
a libel, the ofience is called the publication of a ' seditious
libel.' "
It will be observed that in the ofience thus defined, of utter-
ing seditious language, whether written or spoken, there are two
essential conditions — publication and a seditious intention.
" To publish a libel," it is explained, " is to deliver it, read it,
or communicate its purport in any other manner, or to exhibit
it to any person other than the person libelled, provided that
the person making the publication knows, or has an opportunity
of knowing, the contents of the libel if it is expressed in words,
or its meaning if ifc is expressed otherwise."
" A seditious intention is an intention to bring into hatred
or contempt, or to excite disaffection against the person of Her
Majesty, her heirs or successsors, or the Government and consti-
tution of the United Kingdom, as by law established, or either
House of Parliament, or the administration of justice, or to
SEDITION AT COMMOiV LAW.
11
excite Her Majesty's subjects to attempt, otherwise than by
lawful means, the alteration of any matter in Church or State
by law established, or to raise discontent or disaffection
amongst Her Majesty's subjects, or to promote feelings of ill-will
and hostility between different classes of such subjects.
Then it is explained further that, " An intention to show
that Her Majesty has been misled or mistaken in her measures,
or to point out errors or defects in the Government or constitu-
tion as by law established, with a view to their reformation, or
to excite Her Majesty's subjects to attempt by lawful means the
alteration of any matter in Church or State by law established,
or to point out, in order to their removal, matters which are pro-
ducing, or have a tendency to produce, feelings of hatred and
ill-will between classes of Her Majesty's subjects, is not a
seditious intention."
Finally, the intention referred to might be presumed from
conduct, which would, of course, include the language employed.
" In determining whether the intention with which any words
were spoken, any document was published, or any agreement
{i.e., for seditious conspiracy) was made, was or was not sedi-
tious, every person must be deemed to intend the consequences
which would naturally follow from his conduct at the time and
under the circumstances in which he so conducted himself. *
Seditious conspiracy is thus defined : — " Every one commits
a misdemeanour who agrees with any other person or persons to
do any act for the furtherance of any seditious intention common
to both or all of them."
" If a meeting is held for the purpose of speaking seditious
words to those who may attend it, those who take part in that
design are guilty of a seditious conspiracy."
These were the terms in which the English law of sedition
was defined by one of the highest authorities on the Criminal
law. But to this must be added the elaborate definitions now
to be found in the monumental treatise expressly referred to by
the learned jurist, as " Russell on Crimes."
In the latest edition of that work sedition is thus defined : —
" Sedition consists in acts, words, or writings, intended or calcu-
lated, under the circumstances of the time, to disturb the tran-
quillity of the State, by creating ill-will, discontent, disaffection,
12 THE LAW OF SEDITION.
hatred, or contempt, towards the person of the King, or towardtj
the Constitution or Parliament, or the Government, or the estab-
lished institutions of the country, or by exciting ill-will between
different classes of the King's subjects, or encouraging any class
of them to endeavour to disobey, defy, or subvert the laws or
resist their execution, or to create tumults or riots, or to do any
act of violence or outrage, or endangering the public peace."
This admirable definition leaves nothing to be desired in
completenes.^, lucidity, and expressiveness. It comprises in
fact the essence of the English case-law extending over a long
period of years, and may be accepted as the final result of a
careful selection of the most approved authorities.
To this is appended a second definition founded upon the
older authorities, which may be cited for its historical interest.
It is stated thus : — " According to the older authorities it is
seditious wantonly to defame or indecorously to calumniate
that economy, order, and constitution of things which make up
the general system of the law and Government of the country ;
and more particularly to degrade or calumniate the person or
•character of the Sovereign, or the administration of his Govern-
ment by his officers and ministers of State, or the administration
of justice by his judges, or the proceedings of either House of
Parliament."
From a comparison of these definitions it will be seen that
the new measure introduced in 1870 by Sir James Stephen, was,
as he described it, substantially the same as the law of England,
as in fact it was intended to be.
For a complete exposition of the law, however, recourse
must be had to the two leading cases of Re(i. v. Sullivan (11 Cox,
44) and Reg. v. Burns (16 Cox, 355) ; and to the celebrated
•charges, delivered respectively by Lord Fitzgerald and Justice
Cave. The former was a trial for ' seditious libel,' and the lat-
ter for uttering ' seditious words.'
In the first of these cases the defendants Sullivan and
Pigott were in the year 1868, indicted for printing and publish-
ing seditious libels upon Her Majesty's Government in their
newspapers — the Weekly Neivs and the Irishman.
Lord Fitzgerald, in addressing the grand jury for the
County of Dublin, said : — "I have now to direct your attention
SEDITION AT COMMON LAW. J 3
to two cases of great public importance, in which the Attorney-
General prosecutes the publishers of two weekly newspapers
for a series of printed articles alleged to be seditious libels
of a very dangerous character. As such prosecutions are
unusual, I think it necessary, in the first instance to define
sedition, and point out what is a seditious libel. Sedition is a
crime against society, nearly allied to that of treason, and it
frequently precedes treason by a short interval. Sedition in
itself is a comprehensive term, and it embraces all those
practices, whether by word, deed, or writing, which are calcu-
lated to disturb the tranquillity of the State, and lead ignorant
persons to endeavour to subvert the Government and the laws
of the empire. The objects of sedition generally are to induce
discontent and insurrection, and to stir up opposition to the
Government, and bring the administration of justice into con-
tempt : and the very tendency of sedition is to incite the people
to insurrection and rebellion. Sedition has been described as
disloyalty in action, and the law considers as sedition all those
practices which have for their object to excite discontent or
dissatisfaction, to create public disturbance, or to lead to civil
war ; to bring into hatred or contempt the Sovereign or the
Government, the laws or constitution of the realm, and generally
all endeavours to promote public disorder."
Having thus defined the character of the offence, the learned
Judge continued : — " It is scarcely necessary to point out
that to accomplish treasonable purposes, and to delude the weak,
the unwary, and the ignorant, no means can be more effectual
than a seditious Press. With such machinery the preachers of
sedition can sow widecast those poisonous doctrines, which,
if unchecked, culminate in insurrection and revolution. Lord
Mansfield likened a seditious and licentious Press to Pandora's
box— the source of every evil. Words may be of a seditious char-
acter, but they might arise from sudden heat, be heard only by
a few, create no lasting impression, and differ in malignity and
permanent effect from writings. Sir Michael Foster said of the
latter : ' seditious writings are permanent things, and if published
they scatter the poison far and wide. They are acts of delibera-
tion, capable of satisfactory proof, and not ordinarily liable to
misconstruction ; at least they are submitted to the judgment
l^ THE LAW OF SEDITION.
of the Court naked and undisguised, as they came out of the
author's hands.'
The learned Judge next referred to the various articles pub-
lished in the Irishman, which he divided into three classes. " As
to the articles extracted from other papers," he said, "' it was
recently contended that, even if these articles were of a seditious
or treasonable character, yet the defendant was justified in pub-
lishing them as foreign news. I am bound to warn you against
this very unsound contention, and I may now tell you, with the
concurrence of my learned colleague, that the law gives no such
sanction, and does not in the abstract justify or excuse the re-
publication of a treasonable or seditious article, no matter from
what source it may be taken. In reference to all such republica-
tions the time, the object, and all the surrounding circumstances
are to be taken into consideration, and may be such as to rebut
any inference of a criminal intention in republication." But
in the absence of such circumstances " it would be reasonable to
infer that the publisher intended what would be the natural
consequences of his acts — namely, to promote some seditious
obiect. If the law be powerless in the case of such publications,
then we may as well blot out from the Statute book the chapter
on seditious libel, which would take away from society the great
protection which the law affords to their institutions."
The learned Judge then referred to the articles in detail
and continued : — " The crime is laid in the intent, and you can
only find a Bill against the accused when you come conscien-
tiously to the conclusion — assuming you find the articles to be
seditious — that they were published with the intent laid in the
indictment — namely, to spread, stir up, and excite disaffection
and sedition amongst the Queen's subjects, to excite hatred and
contempt towards Her Majesty's Government and administra-
tion, to encourage, foster, and keep alive the Fenian conspiracy.
The intention charged is varied in each Court."
" With respect to the question of the freedom of the
Press," his lordship added, " I feel bound to say a few words.
Since 1692 there was complete liberty of the Press in great
Britain and Ireland. By liberty of the Press I mean complete
freedom to write and publish without isensorship and without
restriction, save such as was absolutely necessary for the
SEDITION AT COMMON LAW. 15
preservation of society. Our civil liberty is largely due to a
free Press, which is the principal safeguard of a free State, and
the very foundation of a wholesome public opinion. Every
man is free to write as he thinks fit, but he is responsible to
the law for what he writes; he is not, under the pretence of
freedom, to invade the rights of the community, or to violate
the constitution, or to promote insurrection, or endanger the .
public peace, or create discontent, or bring justice into contempt
or embarrass its functions. Political or party writing, when
confined within proper and lawful limits, is not only justifiable,
but is protected for the public good, and such writings are to be
regarded in a free and liberal spirit. A writer may criticise or
censure the conduct of the servants of the Crown or the acts
of the Government — he can do it freely and liberally — but it
must be without malignity, and not imputing corrupt or mali-
cious motives. With the same motives a writer may freely
criticise the proceedings of Courts of justice and of individual
judges — nay he is invited to do so in a free and fair and liberal
spirit. The law does not seek to put any narrow construction
on the expressions used, and only interferes when plainly and
deliberately the limits are passed of frank and candid and honest
discussion. Lord Kenyon has quaintly said, ' a man may
publish whatever a jury of his countrymen think is not blamable.'
In ordinary cases the facts are for the jury and the law for the
judge ; but in cases of libel, and with a view to the true freedom
of the Press the law casts on the jury the determination of both
law and fact. You are to determine whether or not the publica-
tions in question are or are not seditious libels."
In conclusion his lordship observed : — ' ' In dealing with
the question whether the articles were published with the sedi-
tious intention charged in the indictment, you will fairly con-
sider the surrounding circumstances, coupled with the state of
the country and of the public mind when the publication took
place, for these may be most material in considering the offence.
For example, if the country was free from political excitement
and disaffection, was engaged in the peaceful pursuits of com-
merce and industry, the publication of such articles as have
been extracted from American papers might be free from danger
and comparatively innocent, but in a time of political trouble
J6 THE LAW OF SEDITION.
and commotion, when the country has just emerged from an
attempt at armed insurrection, and whilst it is still suffering
from the machinations and overrun by the emissaries of a
treasonable conspiracy, hatched and operating in a foreign land,
the systematic publication of articles advocating the views and
objects of that conspiracy seems to admit but of one interpreta-
tion. The intentions of men are inferences of reason from
their actions where the action can flow but from one motive,
and be the reasonable result of but one intention."
' ' Now I would invite you to a careful examination of these
articles. You should deal with them in a broad and candid and
liberal spirit, and subject them to no narrow and jealous criti-
cism. But if on the other hand, from their whole scope, you are
coerced to the conclusion that their object and tendency is to
foment discontent and disaffection, to excite to tumult and in-
surrection, to promote the objects of a treasonable conspiracy,
to bring the administration of justice into disrepute, or to stir
up the people to hatred of the laws and the constitution, then you
may, if you think fit, and you ought to find the bills." The
grand jury having brought in true bills in both cases, the trials
( ame on in due course.
In Sullivan's case Lord Fitzgerald, in charging the jury,
raade the following observations: — " You are here in this trial
the sole judges of the law and the facts. My duty is to simplify
the case you have to determine, assist you if I can, and address
vou solely in the cahn voice of reason. This is a prosecution of
a very unusual nature. There has not been one of this character
certainly for the last twenty years. The jury are constituted
l)ylawthe sole judges to determine every question between the
Queen and the defendant. I would remind you in the outset
that there will be four questions for you to apply your atten-
tion to. The first is a question of fact — Did the defendant
])ublish the libels ? Upon that there will be no difficulty, for
it is not a matter of controversy that Mr. Sullivan, the defendant,
is the proprietor and publisher of the Weekly News, and that
the several articles and wood-cuts were published in that paper.
The next question for you to examine into is this — Do these pub-
lications, whether printed matter or wood-cuts, fairly bear the
interpretation which the Crown has put upon them by the
SEDITION AT COMMON LAW. X7
innuendos ? The next question is one of paramount importance,
and it is one of which the jury are the sole judges — whether these
publications are seditious libels ? That question of law and fact
is entrusted to the jury alone."
" If you 'come to the conclusion," the learned Judge con-
tinued, " that the defendant published these articles, that the
true meaning has been given to them, that they are seditious-
libels, published with the intention imputed to them, you have
all the elements which would warrant you in bringing in a
verdict cf guilty."
" The man who criticises the conduct of the Government,"
he added, " ought not to impute improper motives, and though
he may point out that there is bad administration of justice,
yet he should not use language that would indicate contempt
of the laws of the land. When a public writer exceeds his limit
and uses his privilege to create discontent and dissatisfaction
he becomes guilty of what the law calls sedition.''
" Now I would invite your attention to the indictment.
There are three allegations. It is alleged that the defendant
intended by these publications and prints to excite hatred or
contempt of Her Majesty's Government, and the administration
of the laws ; and further, that these prints were intended to
create dissatisfaction, to excite hatred and contempt of the
Government, and to disturb the tranquillity of the realm.
Without defining sedition further than for the purposes of this
trial, I have to tell you if you in your honest judgment come
to the conclusion that these publications, or any of them, are
calculated and intended to excite hatred of the Government
and the administration of the laws, or create dissatisfaction, or
disturb the public peace, then they are seditious libels. I do
not think I can put the matter plainer than that."
With regard to the pictorial prints which were charged as
seditious, the learned Judge remarked : — " It was open to the
Attorney-General to call intelligent witnesses, and ask them
what the true meaning of this picture was ; for, after all, the ques-
tion is not how Mr. Sullivan meant it, but how it would be under-
stood by an ordinary intelligent individual. It will be for you
to take into account the letterpress that accompanies this, in
order to assign the true meaning to it ; but there is not much
i>, LS . 2
18 THE LAW OF SEDITION.
difference between the meaning assigned to it by the Crown and
assigned by the defendant. It is one of those means of deliberate
and gigantic deception by which the people of this country are
periodically misled. I call it deliberate and gigantic deception,
because they were dealing with an acute race — with a people
amongst whom education is every day spreading further and
further — a people who, if only allowed to know the truth and
to form judgments for themselves, are quick-witted and able to
form judgments upon what is their true and real interest.
" But we cannot shut our ears to this, that for many years,
as well as during the present time, the people were not allowed
to know the. truth. Can any one say that this picture really
and truly represents the state of the Irish nation when it repre-
sents Hibernia cast upon the ground, held down by the violent
hand of England."
The learned Judge then dealt with the remaining woodcuts
in detail, and finally with the articles which formed the subject
of the indictment. In considering these he made the following
observations :— " I concur with the counsel for the defendant
that if the law of libel was carried out in the full strictness of its
letter, it would materially interfere with the freedom of the Press.
Hence a great deal depends upon the forbearance of Government,
the discretion of judges, and, above all, on the protection of juries.
For instance, it is open to the community and to the Press to
complain of a grievance. Well, the mere assertion of a grievance
tends to create a discontent, which, in a sense, may be said to
be seditious. But no jury, if a real grievance were put forward
and its redress howl fide sought, although the language used
might be objected to — no jury would find that to be a seditious
libel."
"If the article," he added, "had simply been a free
discussion of these questions, or of the acts of the Government,
this prosecution would never have taken place. But the
Attorney-General says that the bounds of criticism have
been passed."
"To constitute crime, the criminal intent and the criminal
act should concur. But every person must frimd facie be taken
to intend the natural consequences of his own acts. You can-
not dive into the intentions of a man's heart, save so far as
SEDITION AT COMMON LAW. 19
they are indicated by his acts and their natural consequences.
This rule may at times operate harshly, but public policy
requires that it should be put in force."
Finally, in summing up the whole case, the learned Judge
said : — ' ' With these observations I leave the case in your hands.
I invite you to deal with the case, which is a grave and important
case, in a fair, free, and liberal spirit. In dealing with the
articles you should not pause upon an objectionable sentence
here, or a strong word there. It is not mere strong language,
such as ' desecrated Court of justice,' or tall language, or turgid
language that should influence you. You should, I repeat,
deal with the articles in a free, fa-ir, and liberal spirit. You
should recollect that to public political articles great latitude
is given. Dealing as they do with the public affairs of the day —
such articles if written in a fair spirit, and bond fide, often result
in the production of great public good. Therefore I advise and
recommend you to deal with these publications in a spirit of
freedom, and not to view them with an eye of narrow criticism."
"Again I say, you should not look merely to a strong word or
a strong phrase, but to the whole article. Viewing the whole
case in a free, bold, manly and generous spirit towards the
defendant, if you come to the conclusion that the publica-
tions indicted either are not seditious libels, or were not
published in the sense imputed to them, you are bound, and
I ask you in the name of free discussion, to find a verdict for the
defendant. I need not remind you of the worn-out topic — to
extend to the defendant the benefit of the doubt. If, on the
other hand, on the whole spirit and import of these articles,
you are obliged to come to the conclusion that they are seditious
libels, and that their necessary consequences are to excite con-
tempt of Her Majesty's Government, or to bring the administra-
tion of the law into contempt and impau' its functions — if you
come to that conclusion, either as to the articles or prints, or
any of them, then it becomes your duty, honestly and fearless-
ly, to find a verdict of conviction upon such counts as you
believe are proved." The defendant was found guilty.
These were the principles laid down by Lord Fitzgerald
in his two memorable charges, the main portions of which have
20 THE LAW OF SEDITIOX.
been set out above. These are the passages which have been,
and are likely to be, cited, on either side, at trials for sedition in
India, and may therefore prove useful for reference.
In the trial of Pigott, which immediately followed (11 Cox,
60) and at which Baron Deasy presided, the observations of the
learned Judge on the limits of public journalism, may also be
cited with advantage.
"A public journalist," he said, "must respect the
existence of the form of Government under which he exer-
cises those very extensive rights and privileges to which
I have referred. He must not either covertly or openly devote
the pages of his journal towards the overthrow of the Govern-
ment. He must not when a treasonable conspiracy exists in
this land make his journal ancillary to the treasonable purposes
of that conspiracy, or supply the members of it with intelligence,
or devote his journal to encourage them to persevere in that con-
piracy, or to encourage others who may not be embarked in it
to become involved in its meshes. He must not spread discon-
tent in the land or inflame the minds of the people, so that
they may be more ready to join in the insurrection which
conspirators are seeking to bring about."
" You should make every allowance for freedom of dis-
cussion, make every allowance for excitement and passion ;
and if, after making all these allowances, you think that
the limits of fair discussion have been overstepped, and that
the defendant has devoted his paper to these purposes or any
of them, and with the intention ascribed to him in the indict-
ment, it will be your duty, great as your regard may be for the
liberty of the Press, to pronounce a verdict upon such of the
counts as you think are sustained by the publications."
The jury found the defendant guilty.
CHAPTER III.
SEDITION AT COMMON LAW. — COMd.
The second of the two leading cases on this subject, Reg.
V. Burns, is regarded by some as even more important than the
first. The learned editors of ' Russell on Crimes ' assert
{p. 302) that " the present view of the law is best stated in R. v.
Burns (16 Cox, 355)," and thereafter set out in extenso Justice
Cave's memorable charge to the jury (pp. 303 — 6), as containing
probably the most comprehensive summary of the law. It
will therefore be necessary in the present chapter to refer to it
in considerable detail, setting out the main portions, or those
at least which seem to be applicable to trials in this country.
In this case John Burns, now a member of the Privy Council
and of the present Cabinet, was, in the year 1886, indicted, along
with three other persons, for ' ' unlawfully and maliciously utter-
ing seditious words of and concerning Her Majesty's Govern-
ment with intent to incite to riot, and, in other counts, with in-
tent to stir up ill-will between Her Majesty's subjects and for
conspiring together to effect the said objects."
The indictment was in respect of certain speeches delivered
by the four defendants to a large mob of persons, chiefly com-
posed of unemployed workmen, first in Trafalgar Square and sub-
sequently in Hyde Park. The speeches were, on each occasion,
followed by serious disturbances, which were alleged to be the
immediate result of the inflammatory language employed by the
defendants. It was in evidence that after the delivery of the
■speeches in Trafalgar Square a procession was formed of some
3,000 to 4,000 persons, in which the defendants took part, and
the crowd moved en masse towards the West-end. On the way
a demonstration took place in front of the Carlton Club, where
the mob indulged in stone-throwing and a number of windows
were broken. Fm'ther disturbances occurred en route to Hyde
Park, where more speeches were delivered. These again were
followed by similar disorderly occurrences.
22 THE LAW OF SEDITION.
It was not suggested by the Crown " tliat the defendants
desired the disturbances to take place, or that they directly in-
cited the crowd to cause those disturbances; " but that they "must
have been aware of, and were answerable for, the natural results
of the language they used."
Justice Cave in charging the jury said: — " It is now my
duty to explain to you the rules of law which ought to govern
you in considering this case, and also to summarise shortly for
your benefit the evidence which has been given, so that you may
have the less difficulty, in applying the principles of the law to
that evidence. There is undoubtedly no question at all of the
right of meeting in public, and the right of free discussion is alsO'
perfectly unlimited, with the exception, of course, that it must
not be used for the purpose of inciting to a breach of the peace
or to a violation of the laAv.
The law upon the question of what is seditious and what
is not, is to be found stated very clearly in a book by a learned
judge, who has undoubtedly a greater knowledge of the criminal
law than any other judge who sits upon the bench, and what he
has said upon the subject of sedition was submitted to the other
learned judges, who some time back were engaged with him in
drafting a Criminal Code, and upon their report the Commis-
sioners say that his statement of the law appears to them to be
stated accurately as it exists at present. So that that statement
has not only the authority of Stephen, J., but also the authority
of the very learned judges who were associated with him in pre-
paring the Criminal Code. This is what he says on seditious
words and libels : ' Every one commits a misdemeanour who
publishes verbally or otherwise any words, or any document,
with a seditious intention. If the matter so published consists
of words spoken the offence is called the speaking of seditious
words. ' That is what we have to do with to-day. ' If the matter
so published is contained in anything capable of being a libel,
the offence is called the publication of a seditious libel.'
" The next question that one asks is this : There are two ofTences,
one is the offence of speaking seditious words, and the other offence
is the publication of a seditious libel. It is obviously impor-
tant to know what is meant b}' the word sedition, and Stephen,
J., proceeds in a subsequent article to give a definition of it.'*
SEDITION AT COMMON LAW. 25.
The learned Judge here cited Sir James Stephen's definition
of a ' seditious intention,' which has been set out in the previous
chapter, and continued : — " He goes on to point out what sort of
intention is not seditious. It is also important to consider that,
because there we get alight thrown upon the subject from an-
other side." After citing the explanation to the foregoing defi-
nition (see Ch. ii) his lordship added : — " So there he gives in
these two classes what is, and what is not, sedition. Now, the
seditious intentions which it is alleged existed in the minds of
the prisoners in this case are : first, an intention to excite Her
Majesty's subjects to attempt otherwise than by lawful means
the alteration of some matter in Church or State by law establish-
ed ; and, secondly, to promote feelings of ill-will and hostility
between different classes of Her Majesty's subjects. This is
necessarily somewhat vague and general, particularly the se-
cond portion, which says it is a seditious intention, to intend
to promote feelings of ill-will and hostility between different
classes of Her Majesty's subjects. I should rather prefer to say
that the intention to promote feelings of ill-will and hostility
between different classes of Her Majesty's subjects may be a se-
ditious intention according to circumstances, and of those cir-
cumstances the jury are the judges ; and I put this question to
the Attorney-General in the course of the case : ' Suppose a man
were to write a letter to the papers attacking bakers or butchers
generally with reference to the high prices of bread or meat,
and imputing to them that they were in a conspiracy to keep
up the high prices, would that be a seditious libel — being written
and not spoken V To which the Attorney-General gave me the
only answer which it was clearly possible to give under the
circumstances : ' That must depend upon the circumstances.'
I, sitting here as a judge, cannot go nearer than that. Any
intention to excite ill-will and hostility between different classes
of His Majesty's subjects may be a seditious intention ; whether
in a particular case this is a seditious intention or not, you must
judge and decide in your own minds, taking into consideration
the whole of the circumstances of the case."
It will be observed that promoting class hatred is not includ-
ed in the offence of sedition in India. It is, however, none the
less an offence, and punishable under the Penal Code, though
24 THE LAW OF SEDITION.
not under section 124 A. It must therefore be dealt with here-
after under the head of Cognate offences.
" You may not unnaturally say," his lordship continued,
*' that that is a somewhat vague statement of the law, and ask
by what principle shall we be governed in deciding when an in-
tention to excite ill-will and hostility is seditious and when it is
not. For your guidance, I will read you what was said by Fitz-
gerald, J., in the case of J^ej. v. Sullivan, which was a prosecu-
tion for a seditious libel, the only difference between the two
cases being of course that, while seditious speeches are spoken,
a seditious libel is written, but in each of them the adjective
'seditious' occurs, and what is seditious intention in the one case
will equally be a seditious intention in the other." The learned
Judge here cited Lord Fitzgerald's well-known definition of
sedition, which has been set out in the previous chapter, as well
as the dictum of Sir Michael Foster, and continued : — " That
points to the nature of the proof between seditious writing and
words, and also points to a difference in the effect which they
have, and the extent to which that effect goes, though of course
in regard to seditious words there may be a very great distinction
between words uttered to two or three companions in social
intercourse and words uttered to a large multitude."
The learned Judge then cited Lord Fitzgerald's concluding
remarks, in which he summed up the whole case at the trial,
which have also been set out in the previous chapter, and went
on to add : — " Now that language was used in reference to a
seditious libel, but changing the language so as to apply to a
speech, the principles thus laid down are clearly applicable to
the case which you have now got before you."
" If you think that these defendants, from the whole
matter laid before you, had a seditious intention to incite
the people to violence, to create public disturbances and dis-
order, then undoubtedly you ought to find them guilty. If
from any sinister motive, as, for instance, notoriety, or for
the purpose of personal gain, they desired to bring the
people into conflict with the authorities, or to incite them
tumultuousl)'' and disorderly to damage the property of any
unoffending citizens, you ought undoubtedly to find them
SEDITION AT COMMON LAW. 25
guilty. On the other hand, if you come to the conclusion that
they were actuated by an honest desire to alleviate the misery
of the unemployed — if they had a real bond fide desire to
bring that misery before the public by constitutional and legal
means, you should not be too swift to mark any hasty or
ill-considered expression which they might utter in the excite-
ment of the moment. Some persons are more led on, more
open to excitement than others, and one of the defendants.
Burns, even when he was defending himself before you, so
prone was he to feeling strongly what he does feel, that he could
not refrain from saying that he was unable to see misery and
degradation without being moved to strong language and strong
action. I mention that to you to show you the kind of man he
is, and for the purpose of seeing, if you come to the conclusion
that he was honestly endeavouring to call the attention of the
authorities to this misery and honestly endeavouring to keep
within the limits of the law and the constitution, that you
should not be too strong to mark if he made use of an ill-
considered, or too strong an expression."
His lordship then dealt with the particular charge in the
case. " It divides itself," he said, " roughly into two heads.
There is, first, the charge that they uttered certain words upon
the occasion of this demonstration, and that is separated into
nine counts, and then there comes a general charge which
involves the whole of them, namely, that they agreed together
before they went to this meeting that they would make speeches
with the intention of exciting the people to disorder. I am
unable to agree entirely with the Attorney-General when he says
that the real charge is that, though these men did not incite or
contemplate disorder, yet, as it was the natural consequence of
the words they used, they are responsible for it. In order to
make out the offence of speaking seditious words there must be a
criminal intent upon the part of the accused, they must be
words spoken with a seditious intent ; and although it is a good
working rule to say that a man must be taken to intend the
natural consequences of his acts, yet if it is shown from
other circumstances, that he did not actually intend them, I do
not see how you can ask a jury to act upon what has then
become a legal fiction."
26 THE LAW OF SEDITION.
"I am glad to say," lie continued, " that witli regard to-
this matter I have the authority again of Stephen, J., who, in
his ' History of the Criminal Law,' has dealt with this very
point ; he deals with it in reference to the question of seditious
libel. Stephen, J., says : ' To make the criminality of an act
dependent upon the intention with which it is done is ad-
visable in those cases only in which the intent essential to the
crime is capable of being clearly defined and readily inferred
from the facts. Wounding, with intent to do grievous bodily
harm, breaking into a house with intent to commit a felony,
abduction with intent to marry or defile, are instances of such
offences. Even in these cases, however, the introduction of the
term ' intent ' occasionally led either to a failure of justice or
to the employment of something approaching to a legal fiction
in order to avoid it. The maxim that a man intends the natural
consequences of his acts is usually true, but it may be used as
a way of saying that because reckless indifference to probable
consequences is morally as bad as an intention to produce those
consequences, the two things ought to be called by the same
name, and this is at least an approach to a legal fiction. It is
one thing to write with a distinct intention to produce dis-
turbances, and another to write violently and recklessly matter
likely to produce disturbances.' Now if you apply that last
sentence to the speaking of words, of course it is precisely
applicable to the case now before you. It is one thing to
speak with the distinct intention to produce disturbances, and
another thing to speak recklessly and violently of what is
likely to produce disturbances."
The doctrine here cited by the learned Judge, as enunciated
by Sir James Stephen in his 'History,' would seem, at first sight,
to be in conflict, with what he has laid down in his ' Digest.'
In the passage cited in the previous chapter from his ' Digest,'
he lays down the doctrine of intention in the following terms: —
" In determining whether the intention with which any words
were spoken, (or) any document was published, was or was
not seditious, every person must be deemed to intend the conse-
quences which would naturally follow from his conduct at the
time and under the circumstances in which he so conducted
himself."
SEDITION AT COMMON LAW. 27
But this again is only a re-statement of the maxim
enunciated by Lord Tenterden, C. J., in the case of Haire
V. Wilson (9 B. & C, 643), where he said : — " Every man
is presumed to intend the natural and ordinary consequences
of his act. If the tendency of the publication was injurious
to the plaintiff, the law will assume that the defendant by
publishing it, intended to produce the injury M'hich it was
calculated to effect."
And so also Lord Kenyon, C. J., in R. v. Cuiliell (21 St.
T ., 641), observed : — " God only knows the hearts of men,
and we can collect their meaning only from what they do.
These are fallible modes of arriving at knowledge, but we
have no better, and we must pronounce men innocent or
guilt}^ according to this standard."
The same principle was laid down by Lord Fitzgerald in
Sullivan's case (see Ch. ii) when he said : — " Every person
must frimd facie be taken to intend the natural consequences
of his own acts. You- cannot dive into the intentions of a
man's heart, save so far as they are indicated by his acts
and their natural consequences. This rule may at times
operate harshly, but public policy requires that it should be put
in force."
And again in the case of Reij. v. Burdett (4 B. & A., p. 120),
Justice Best said : — "With respect to whether this was a libel, I
told the jury that the question whether it was published with the
intention alleged in the information was peculiarly for their
consideration ; but I added that this intention was to be collected
from the paper itself, unless the import of the paper were explain-
ed by the mode of publication, or any other circumstances. I
added that if it appeared that the contents of the paper were
likely to excite sedition and disaffection, the defendant must
be presumed to intend that which his act was likely to
produce."
It will thus be seen that though it may be correct to say —
" It is one thing to write or speak with a distinct intention to
produce disturbances, and another to write or speak violently
and recklessly of what is likely to produce disturbances" — for
the distinction no doubt exists, and is capable of demonstration ;
yet this in no wise affects the well-established rule which is cited
28 THE LAW OF SEDITION.
above, and a presumption will always arise from th.e acts of a
man or his language, and continue to operate against him until
it is rebutted.
It would appear, moreover, from the further observations
of Justice Cave, that the doctrine enunciated was made subject
to some reservation, for he goes on to add : — " I must, however,
notwithstanding what I have said upon that subject, go on to
tell you that it is not at all necessary to the offence of uttering
seditious words that an actual riot should follow, that there should
be an actual disturbance of the public peace ; it is the uttering
with the intent which is the offence, not the consequences Avhich
follow, and which have really nothing to do with the of?ence.
A man cannot escape from the consequences of uttering
words with intent to excite people to violence solely because
the persons to whom they are addressed may be too wise or too
temperate to be seduced into that violence. That has, however,
no important bearing in this case. If you come to the conclu-
sion that language w^as used by the defendants or any of them
upon the occasion of that meeting in Trafalgar. Square, and that
it was their intention to excite the people to violence, to a breach
of the law, why then that would undoubtedly be the uttering of
seditious words. "
The learned Judge here evidently means that the intention
is to be gathered from the language used, and he goes on
to say : — " And I apprehend that the Attorney-General was
anxious to fortify himself with this, that the actual disturbances
were the natural consequence of what was said, and perhaps
for more than one reason. In the first place, the Government
undoubtedly declined to prosecute on the assumption that
the defendants had actually incited to these particular disturb-
ances, and although that, as I have said, is not at all necessary
or essential to the procuring of a conviction, yet undoubtedly
that is the moral justification, so to say, the grounds upon which
the Government do place the action which they take." Here
the learned Judge seems to indicate very clearly that " actual
incitement to particular disturbances is by no means essential
to a conviction." He then goes on to add : — " As something,
no doubt, may be gathered from the effect which was actually
produced, there does come a point when one must say, ' This
SEDITION AT COMMON LAW. 20
was SO violent and reckless that it is impossible to conceive that
the man who uttered this did not intend the consequence which
must ensue from it.' " These observations obviously demon-
strate the rule that after all 'a man's language is the onlv index
to his thoughts, his motives, and his intentions.
Lastly, as to the charge of conspiracy the learned Jud^e
said : — " Again with reference to conspiracy there is another
passage of Stephen, J.'s book, where he says — ' If a meeting is
held, for the purpose of speaking seditious words to those who
may attend it, those who take part in that design are guilty of
a seditious conspiracy.' Now in order to have a conspiracy you
must have an agreement formed beforehand between the parties
to that conspiracy that they will hold or have a meeting and
that the words there spoken shall be words of sedition."
" But, although there may have been no previous con-
spiracy, yet when people do go to a meeting there are
circumstances under which a man may be responsible not only
for what he says, but also for what some one else says. Now
what are those circumstances ? Stephen, J., says : ' If at a
meeting lawfully convened seditious words are spoken of such
a nature as are likely to produce a breach of the peace that
meeting may become unlawful, and all those who speak the
words undoubtedly are guilty of uttering seditious words and
those who do anything to help those who speak to produce
upon the hearers the natural effect of the words spoken.'
You must do something more than stand by and say nothing.
If you express approval of the statements of speakers who
utter seditious language that equally will do. But there must
be something of that kind. If one man uses seditious words at a
meeting, those who stand byand do nothing, although they do not
reprobate them, are not guilty of uttering the seditious words.
Those even who make a speech themselves are not guilty of utter-
ing seditious words unless you can gather from the language they
use that they are endeavouring to assist the other man in carrying
out that portion of his speech, and by that course endeavouring
to assist him in causing his words, which excite to disorder to
produce their natural effect upon the people." The jury found
the defendants not guilty on any of the counts.
30 THE LAW OP SEDITION.
"It is sedition," says Mr. Odgers (citing Holt) in his
' Law of Libel,' " to speak or publish of the King any words
which would be libellous and actionable fer se, if printed and
published of any other public character. Thus any words will
be deemed seditious which strike at the King's private life and
conduct, which impute to him any corrupt or partial views, or
assign bad motives for his policy, which insinuate that he is a
tyrant, careless of the welfare of his subjects, or which charge him
with deliberately favouring or oppressing any individual or class
of men in distinction to the rest of his subjects."
" Generally speaking, any words, acts, or writing in respect
of the public acts or private conduct of the King, which tend
to vilify or disgrace the King or to lessen him in the esteem
of his subjects, or any denial of his right to the Crown, even
in common and unadvised discourse, may be punished as
sedition : " (Russell.)
" It is sedition to speak or publish of individual members
■of the Government words which v/ould be libellous and actionable
per se, if written and published of any other public character.
It is also sedition to speak or publish words defamatory of the
Government collectively, or of their general administration, with
intent to subvert the law, to produce public disorder, or to
foment or promote rebellion. Where corrupt or malignant
motives are attributed to the ministry as a whole, and no parti-
cular person is libelled, the jury must be satisfied that the author
"or publisher maliciously and designedly intended to subvert
our laws and constitution, and to excite rebellion or disorder.
There must be a criminal intent. But such an intent will, of
course, be presumed, if the natural and necessary consequence
of the words employed be ' to excite a contempt of Her Majesty's
Government, to bring the administration of its laws into
disrepute, and thus impair their operation, to create disafltection,
or to disturb the public peace and tranquillity of the realm.'"
-{Odgers : and see R. v. Collws, 9 C. & P., 456.)
" The measures of the King and his advisers, and the pro-
ceedings and policy of his Government, may be criticised within
due limits without incurring the penalties of sedition. Every
man has a right to give every public matter a candid, full, and
free discussion ; but although the public have a right to discuss
SEDITION AT COMMON LAW. 31
any grievances they have to complain of, they must not do it
in a way to excite tumult. This right extends to the Press.
But the discussion of political measures cannot lawfully be made
a cloak for an attack upon private character. Libels on persons
employed in a public capacity may tend to scandalise the Govern,
ment by reflecting on those who are entrusted with the adminis-
tration of public affairs, for they not only endanger the public
peace, as all other libels do, by stirring up the parties immediate-
ly concerned to acts of revenge, but also have a direct tendency
to incline the people to faction and sedition " : (Russell.)
" To say," said Lord Holt, C. T., in the case of B,. v. Tucliin
(14 St. T., 109.5), " that corrupt officers are appointed to ad-
minister afiairs is certainly a reflection on the Government. If
men should not be called to account for possessing the people
with an ill opinion of the Government, no government can sub-
sist ; nothing can be worse to any government than to endeavour
to procure animosities as to the management of it ; this has
always been looked upon as a crime, and no government can
be safe unless it be punished."
And so, in the case of R. v. Cobhett (29 St. T., 1), where
the libel was directed against the administration of the Irish
Government and the Lord Lieutenant and Chancellor of
Ireland, Lord Ellenborough, C. J., said : — " It is no new
doctrine that if a publication be calculated to alienate the"
affections of the people by bringing the Government into
disesteem, whether the expedient be by ridicule or obloquy, the
person so conducting himself is exposed to the inflictions of
the law. It is a crime ; it has ever been considered as a crime,
whether wrapt in one form or another. The case of R. v.
Tucliin, decided in the time of Lord Chief Justice Holt, has
removed all ambiguity from this question.
In reviewing these weighty observations, Mr. Odgers, in
his ' Law of Libel,' justly remarks that they must be construed
with reference to the times in which they were made. Lord
Holt, he says, " clearly was not referring to a quiet change of
ministry which in no way shakes the throne, or loosens the
reins of order and government. In 1704 the present system
of party-government was not in vogue. And even in Lord
32 THE LAW OF SEDITION.
Eilenborougli's time the ministry were still appointed by the
King, and not by the people. By ' the Government ' both
judges meant, not so much a particular set of ministers, as
the political system settled by the constitution, the general
order and discipline of the realm."
It will be seen at once that these remarks on the conditions
of government now prevailing in England would have no appli-
cation to India, where the system of government is entirely
different. On the contrary, the political system which obtains ia
this country, approaches more closely to the conception of
government attributed to these eminent Judges. This distinc-
tion was pointed out at the very first trial for sedition ia
India.
CHAPTER IV.
THE LAW IN OPERATION— THE FIRST TRIAL.
This digression into the English Common Law has been
rendered necessary by two circumstances. The first was the
assertion by Sir James Stephen at the time he introduced his
Bill that the new law 'was substantially the same as the law of
England at that date, though much compressed.' The other
is the important influence which the English case-law exerted,
as it was bound to do, on the first trials for sedition in India.
It was moreover the law which in fact prevailed in the Presi-
dency towns up to 1870.
Now the long interval of twenty years which succeeded the
legislation of 1870, whatever be the cause, was not marked by
a single trial. The only incident which seems to break the
monotony of that period was the preventive legislation of 1878,
known as the Vernacular Press Act, which had but a brief career
of four years, being repealed in 1882.
The first State trial for sedition on record is the case of
Queen-Empress v. Jogendra Chunder Bose (19 Cal. 35), better
known as the ' Bangobasi case ,' that being the name of the
newspaper in which the alleged seditious matter appeared.
It is admitted on all hands that the articles in question
were the direct outcome of the legislation of 1891, commonly
known as the " Age of Consent Act." At the trial, which took
place in the High Court at Calcutta, it was urged on behalf of
the Crown that " no attempt at a reasonable discussion of the
' Age of Consent Bill ' was to be found " in the articles charged,
while the defence on the other hand contended that they " did
not exceed the bounds of legitimate criticism " of the measure
in question. To understand the case properly, therefore, it
will be necessary to review briefly the circumstances which
attended the passing of that Act.
Those who have any personal acquaintance with the
incidents referred to at the trial, or have read the speeches
delivered in Council at the time, will know that a good deal of
D, LS ■ 3
a4 THE LAW OF SEDITION.
public excitement prevailed in Hindu circles in certain parts of
Bengal. The situation was thus described by one of the
Members of Council. The Hon'ble Mr. Nugent, speaking on
the very day the Bill was passed (19th March), said : — " That
a Bill on so delicate a subject as that dealt with in this measure
should lead to much agitation and excite considerable oppo-
sition is inevitable, and it cannot be denied that the pro-
posed legislation has in many quarters met with a hostile
reception." But he went on to add, "It is satisfactory,
however, to find that a large and influential volume of public
opinion, notably in the Bombay Presidency, is in favour of the
measure, and that of those persons really competent to judge
the question on its merits, a majority would appear to support
the course pursued by the Government. It may, I think, safely
be assumed that at most, if not all, of what are described as
* monster meetings ' held to protest against the Bill, nine out
of ten of those present had but the most vague and nebulous
notions concerning either the provisions of the Bill or the effects
it was likely to produce. When once, however, the Bill has
become law, all agitation will, I anticipate, speedily subside ;
the baseless clamour regarding religion being endangered will
rapidly die out ; the beneficial and salutary character of the
enactment hedged round with safeguards as it now is, will be
recognised ; and gradually a practice which no right-minded
man can defend, and every kindly-hearted woman must abhor,
will become as extinct as is Sati or any other barbarous custom,
which has already been swept away by the progress of educa-
tion and civilisation."
It cannot be denied that a very strong case had been made
out for the necessity of legislation by the Member in charge of
this Bill, Sir Andrew Scoble. Memorable speeches had been
made in support of it by other Members, and notably by Sir
Griffith Evans, Rao Bahadur Nulkar, and last, but not least, by
His Excellency Lord Lansdowne, the President of the Council.
Sir Andrew Scoble after citing the observations of Justice
Wilson in his memorable charge to the jurj'' at the trial of Hari
Maiti (18 Cal., 49), on the inadequacy of the law to meet the
evils complained of, as well as a mass of data collected through
reliable sources from all parts of the province said : — " There
THE LAW IN OPERATION — THE FIRST TRIAL. 35
is no gainsaying this evidence. It establishes the existence
in Bengal of a horrible practice, condemned alike by the Hindu
religion and by the commonest feelings of humanity and with
which the present law is powerless to cope in any adequate
way. The records of the Criminal Courts are full of cases in
which child-wives between the ages of ten and twelve have
been done to death in the exercise of marital rights by their
husbands."
After recounting some of these cases he proceeded, " I
might multiply cases of this kind, which show not only that Hari
Maiti's case is not exceptional, but that the present law,
though not absolutely a dead letter, does not go far enough
to efficiently protect this helpless class of children. No one can
say that a few months' imprisonment is a sufficient penalty
for crimes of this description, or that the marital relation ought
to be allowed to be pleaded in extenuation or justification of
such outrages on humanity. There is, moreover, much reason
to fear that comparatively few cases of this class find their way
into the Criminal Courts, and not many perhaps into the hos-
pitals. But I would invite the attention of the Council to the
terrible list sent up by Mrs. Mansell and other lady doctors, of
■cases which had come under their personal observation, of
little girls, aged from nine to twelve, who had died, become
paralysed, or crippled, or been otherwise severely injured, as
the result of premature cohabitation."
The Hon'ble Rao Bahadur Nulkar in the course of his
•elaborate and exhaustive argument in support of the measure,
alluded to the same overwhelming testimony as follows : — " In
a petition sent to His Excellency the Viceroy in September
last, praying that the age of consent be raised to fourteen years,
fifty lady doctors practising among Native women in India
have given the harrowing details and cruel deaths among
thirteen cases of child-wives which came before them within
a few years' practice. The ages of the girls ranged between
seven and twelve years. "
He then proceeded to quote some of the ' ' harrowing
details ' ' which it is unnecessary to reproduce here, but his
concluding comments were as follows : — " If all this evidence
fails to convince the opponents that the evil does exist and
36 THE LAW OF SEDITION.
requires a more stringent remedy at the hands of the Legis-
lature to secure adequate protection of child-wives againsu such
fiendish husbands, we can only pity them for their moral
depravity."
Sir Griffith Evans in the course of his forcible speech
said : — " Looking at the mass of evidence before us it does
seem impossible to deny that a state of things exists which
imperatively calls for legislation. Intercourse with immature
female children is so utterly revolting, so contrary to the first
principles of civilised society, and such a physical outrage upon
the poor little children themselves, that I should have thought
it was beyond the pale of discussion to consider whether it
should be treated as a vice like drunkenness, or as what it is, a
heinous crime against these poor little infants. It has been
clearly established that this crime, this odious practice prevails,
and prevails very largely. The terms in which the Raja of
Bhinga has just referred to it show what the real nature of it
is, and also the abhorrence with which all right-minded people
must view it. Then what are the consequences of it ? Not
only is there the physical outrage itself, but it is clearly shown
that in a very large number of cases serious hurt, and some-
times even death, are the result to the victims ; in other cases
injury to their constitution of a lasting and grave character.
So far then it would seem clear beyond all doubt that some
legislation is necessary."
His Excellency Lord Lansdowne, the President, summed up
the whole case with consummate tact and moderation. In dealing
with the religious aspect of the question. His Excellency said : —
" In all cases where there is a conflict between the interests of
morality and those of religion, the Legislature is bound to distin-
guish, if it can, between essentials and non-essentials, between
the great fundamental principles of the religion concerned, and
the subsidiary beliefs and accretionary dogmas which have acci-
dentally grown up around them. In the case of the Hindu
religion such a discrimination is especially needful, and one of
the first questions which we have to ask ourselves is, assuming
that the practice with which our proposed legislation will inter-
fere is a practice supported by religious sanctions, whether
those sanctions are of first-rate importance and absolutely obli-
THE LAW IN OPERATION — THE FIRST TRIAL. 37
gatory, or whether they are of minor importance and binding only
in a slight degree. Now I venture to affirm that the discussion
which has taken place has established beyond controversy that
the particular religious observance which we are urged to
respect is, in the first place a local observance, and one far from
being universally recognised by those who profess the Hindu
faith. It is a practice which is, in the main, peculiar to the
Province of Bengal, and which is followed only in a portion o£
that province, and only by certain classes witKin that portion.
It will not be contended that devout Hinduism is not to be
found outside this restricted area, but the Hindus of other parts
of India do not share the alarm with which this Bill is regarded in
Bengal. In the next place it is admitted that the religious sanc-
tions by which the practice is supported are of the weakest kind."
His Excellency referred to the testimony of eminent
Hindu scholars, of Maharajas, Chiefs, Judges, and leaders of
Hindu societ}'- by way of corroboration, and continued : — " I
feel that the time is not far off when their fellow citizens, without
exception, will recognize that such men as these, rather than
they who have so noisily, and so thoughtlessly repeated the
parrot-cry ' our religion is in danger ' are the true leaders of
public opinion in this country."
His Excellency's concluding remarks were as follows : —
" The necessity of an age-limit being admitted, the only
question which the Council has to decide is whether our pro-
posal fixes that limit at the proper point. We contend that
the point at which we propose to fix it accords at all events more
closeh^ with the physiological facts than any other. We have
been pressed to adopt a higher limit, but we desire to keep on
the safe side. We justify our proposal on the ground that
the British law would fail to provide adequately for the safety
of the children of this country if. while it protects them from
a\\ other kinds of ill-usage, it failed to protect them from a par-
ticular form of ill-usage infinitely more revolting, and infinitely
more disastrous in its direct, as well as its remoter results, than
^ny other form of ill-treatment to which they are liable."
The Bill was then passed by the Council by a practically
unanimous vote, amending section 375 of the Penal Code, and the
age of consent was thereby raised from ten to twelve years.
38 THE LAW OF SEDITION.
There was reason to hope that better counsels had pre-
vailed among its opponents, and there were indications of
a complete subsidence of hostile agitation, as had been in fact
anticipated. Such were the circumstances attending the passing
of that important measure, without some knowledge of which
it would be difficult to follow the drift of the Bangohasi' s:
criticism. They had moreover been freely alluded to in the
course of the trial.
The Bangohasi, of which the four accused were respectively
the proprietor, editor, manager and printer, was a weekly verna-
cular newspaper published in Calcutta, and having a large pro-
vincial circulation.
The Bill had been passed on the 19th March, 1891, and
the first of a series of articles appeared in the Bangohasi on the
28th March, i.e., the following week. The material passages
in the articles charged as seditious were as follows : —
" The English ruler is our lord and master, and can inter-
fere with our religion and usages b}' brute force and European
civilisation. The Hindu is powerless to resist ; but he is-
superior to your nation in good morals, in gentle conduct and'
in good education. Hindu civilisation and the Hindu religion
are in danger of being destroyed. The Englishman stands-
revealed in his true colours. He has the rifle and bayonet and
slanders the Hindu from the might of the gun. How are we
to conciliate him ? We cannot expect mercy or justice from
him. Our chief fear is that religion will be destroyed, but the
Hindu religion will nevertheless remain unshaken. We suffer
from the ravages of famine, from inundations, from the oppres-
sive delays of the law courts, from accidents on steamers and
railways. All these misfortunes have become more prevalent with
the extension of English rule in India ; but our rulers do not at-
tempt to remove these troubles or to ameliorate our condi-
tion. All their compassion is expended in removing the ima-
ginary grievances of girl- wives and interfering with our customs.
We should freely vent our real grievances. We are unable
to rebel, but we are not of those who say it would be improper
to do so if we could. We have been conquered by brute force,
but we are superior to the English in ethics and morality, in
which we have nothing to learn from them. You may crush
THE LAW IN OPERATION — THE FIRST TRIAL. ^9
the body but you cannot affect the mind. Others like
Aurungzebe and Kalapahar have tried before you and failed.
You should not try and suppress girl-marriage because you
won at Plassey and Assaye. It is error and presumption on
your part to attempt to reform our morals."
At the trial the defence contended that this " did not
exceed the bounds of legitimate criticism, when allowance was
made for the difference between European and native methods
of thought and the conservative character of the paper." It
was further argued that as the articles " contained no direct
excitement to rebellion " they were not seditious.
It was contended on behalf of the Crown that there was
"no attempt at a reasonable discussion of the Age of Consent Bill
to be found " in the articles. There was " nothing but
vituperation and invective." In one of them it was stated that
" rebellion was not possible." The intention was to bring the
people into this frame of mind — " We would rebel if we could, "
which was " inconsistent with loyalty to Government." " The
intention of the articles in referring to famines and high prices,
and charging the Government with persecuting the Hindu
religion, " was to make the people " discontented and dis-
satisfied." It was " always dangerous to excite the religious
feelings of the people, and when the Government is compared
to the Emperor Aurungzebe, one of the most persistent perse-
cutors of the Hindu religion, and to Kalapahar, whose name
was held in the greatest abhorrence by Hindus, surely the public
peace is imperilled. "
It is to be regretted that the comments of Sir C. Petheram,
C. J., on these articles have been omitted from the report of
his charge to the jury, but doubtless he referred to the argu-
ments advanced on both sides. The leading English authorities
had been freely cited during the trial, in support of either
view, and their influence is distinctly traceable in his lordship's
charge. After reading the section as it then stood (see CJi. I)
to the jury, he proceeded to expound its meaning.
After disposing of the contention advanced by the defence
that the word " disaffection " meant simply disapprobation,
as clearly unsustainable, his lordship proceeded : — " Disaffection
means a feeling contrary to affection, in other words dislike or
40 THE LAW OF SEDITION.
, hatred. If a person uses either spoken or written words
calculated to create in the minds of the persons to whom they
■ are addressed a disposition not to obey the lawful authority
of the Government, or to subvert or resist that authority, if
'. and when occasion should arise, and if he does so with the
intention of creating such a disposition in his hearers or readers,
he will be guilty of the offence of attempting to excite dis-
affection within the meaning of the section, though no distur-
bance is brought about by his words, or any feeling of disaffec-
tion in fact produced by them. It is sufficient for the purposes
I of the section that the words used are calculated to excite
' feelings of ill-will against the Government, and to hold it up to
the hatred and contempt of the people, and that they were used
with the intention to create such feeling."
It will be observed that the expressions employed in the
last sentence are clearly imported from the English case-law,
and, as they were the direct cause of further legislation in
1898, the matter is worthy of note. This interpretation of the
section was subsequently cited with approval by the High
Courts of Bombay and Allahabad.
His lordship's further directions to the jury for tlie
construction of the articles in question are also of much value,
and may be taken as a guide for the construction of seditious
matter generally.
" You will have to bear in mind," he said, " the class of
paper which is being prosecuted, and the class of people among
whom it circulated, taking into consideration the articles which
have been made the subject of the indictment, and the others
which have been put in during the course of the trial. Those
articles are not addressed to the lowest or most ignorant mass
of the people. They are addressed to people of the respectable
middle class, who can read and understand their meaning — more
or less the same class as the writers. You will have to consider
not only the intent of the person who wrote and disseminated
the articles among the class named, but the pr oba ble effect
of the language indulged in. Then you will have to consider
the relations between the Government and the people, and
having considered the peculiar position of the Government and
the consequence to it of any well-organised disaffection, you
THE LAW IN OPERATION — THE FIRST TRIAL. 41
will have to decide whether there is an attempt or not to
■disseminate matter with the intention of exciting the feelings
of the people till they become disaffected. "
" British India, " his lordship continued, " is part of the
British Empire, and is governed like other parts of the Empire
by persons to whom the power is delegated for that purpose.
There is a great difference between dealing with Government
in that sense and dealing with any particular administration-
Were these articles intended to excite feelings of enmity against
the Government, or on the other hand, were they merely
expressing, though in strong language, disapprobation of certain
Government measures ? You will bear in mind that the
question you have to decide has reference to the intention ',
and, in fact the crime consists of the intention, for a man
might lawfully do the act without the intention. The evidence
/ of intention can only be gathered from the articles. The ultimate
object of the writer may be one thing, but if, in attaining that
object, he uses as the means the exciting of disaffection against
the Government, then he would be guilty under section 124A.
If you think that these people, with the object of procuring the
repeal of the Age of Consent Act, or of increasing the sale of their
paper, disseminated these articles intending to excite feelings of
enmity, you will be bound to find a verdict of guilty. As to
the evidence of intent, the articles are the only evidence."
As the jury were unable to return a unanimous verdict,
they were discharged, and the case was set down for retrial.
The accused however in the meanwhile tendered an apology,
and the proceeding was dropped. Thus ended the famous
Bangobasi case.
CHAPTER V.
SOME NOTABLE TRIALS.
A PERIOD of six years elapsed before another prosecution
was instituted for sedition, but in 1897 three notable trials took
place. Two of these were held in Bombay and the third at
Allahabad, while all of them had a direct bearing on the legislation
of 1898. The first in priority of time, if not in importance, was
the case of Queen- Em press v. Bal Gayigadhar Tilah (22 Bom. 112),
commonly known as ' Tilak's case.' This trial, which ended in
a conviction, had the distinction of passing through three stages.
There was the trial in the High Court, then the application for
leave to appeal to the Privy Council, and finally the application
before the Privy Council itself, where the accused had for his
counsel the present Prime Minister and othei* eminent barristers.
The trial in the High Court was before Justice Strachey, whose
celebrated charge to the jury, though repeatedly attacked for
misdirection, was ultimately approved and endorsed by the Privy
Council.
It is an exhaustive exposition of the law, dealing as well
with a great variety of questions incidental to such trials, and
may be regarded as a compendium both of the law and the prac-
tice which pertains to sedition. It will be necessary, therefore,
to refer to this charge very frequently as an authority on many
points, but for the present it will suffice to consider it only in
its relation to the legislation of the following year, on which
it exercised an important influence.
The facts established at the trial were as follows: Tilak
was the proprietor, editor, and publisher of a weekly vernacular
newspaper called the Kesari, published at Poona, and having
a large circulation in the province, with a list of six or seven
thousand subscribers. His co-accused was the acting man-
ager. Tilak had some ten years before signed a declaration as
publisher under Act XXV of 1867 (see Appx.), which rendered
him primi facie liable, as was pointed out to the jury, for the
SOME ROTABLE TRIALS. 43
publication of every article, and in fact of " every part of any
paper bearing a name corresponding to that mentioned in
the declaration." This was not disputed, nor indeed was any
attempt made to shirk responsibility in respect of the articles in
question.
The seditious matter charged was contained in two differ-
ent series of publications, which appeared in the issue of
the L5th June 1897. The first was a highly metaphorical and
barely intelligible rhapsody, partly in verse, entitled " Shivajis
Utterances.'" The other purported to be a report of the pro-
ceedings at the Shivaji Coronation Festival, with a summary
of the speeches delivered at the celebration of the 12th June,
including one from Tilak himself, who was the President.
Among the remarkable utterances attributed to the heroic
Shivaji, on his awakening from a sleep of centuries to view the-
desolation of his native land, were the following: — " By anni-
hilating the wicked I lightened the great weight on the
terraqueous globe. I delivered the country by establishing
' Swarajya' (independence), and by saving religion. I betook
myself to heaven to shake off the exhaustion which had come
upon me. I was asleep ; why then did you, my darlings, awaken
me 1 I had planted upon this soil the virtues that may be
likened to the Kalpavriksha, of sublime policy, based on a
strong foundation, valour in the battlefield like that of Kama,
patriotism, genuine dauntlessness, and unity, the best of all.
Perhaps you now wish to show me the fruits of these. Alack !
AMiat is this ? I see a fort has crumbled down. Through this
misfortune I get a broken stone to sit upon. "Why does not my
heart break like that this day ? Alas ! alas ! I now see with
my own eyes the ruin of my country. Those forts of mine, to
build which I expended money like rain, to acquire which fresh
fiery blood was spilled, from which I sallied forth roaring like
a lion through the ravines, have crumbled down. What a deso-
lation is this ! Foreigners are dragging out Lakshmi (affluence)
violently by the hand (or by taxation), by means of persecution.
Along with her plenty has fled, and after that health also. This
wicked Akabaya stalks with famine through the whole country.
Relentless death moves about spreading epidemics of dis-
eases."
•44 THE LAW OF SEDITION.
Then follows a wild metrical rhapsody full of covert allu-
sions to the tribulations of the people, the miseries of toil and
hunger, the ruthless slaughter of cows, the brutal treatment
of women, and the killing of natives on trivial pretexts. ' ' How
■do the white men escape by urging these meaningless pleas ?
This great injustice seems to prevail in these days in the tribu-
nals of justice. Could any man have dared to cast an improper
glance at the wife of another, a thousand sharp swords would
have leapt out of their scabbards instantly. Now however op-
portunities are availed of in railway carriages, and women are
dragged by the hand. You eunuchs ! How do you brook
this ? "
This terrible picture of India under British rule concludes
with the following peroration. " Give my compliments to
my good friends, your rulers, over whose vast dominions the
sun never sets. Tell them ' How have you forgotten that old
way of yours, when with scales in hand you used to sell your
goods in your warehouses ! ' As my expeditions in that direction
were frequent, it was at that time possible to drive you back to
your own country. The Hindus, however, being magnanimous
by nature I protected you. Have you not been laid under deep
obligations ? Make then your subjects, who are my own chil-
dren, happy. It will be good for your reputation if you show
your gratitude" now by discharging this debt." The sign of
a Bhawani sword was affixed to the end of this.
The second extract charged as seditious consisted of a report
of various lectures, discourses, and speeches delivered in celebra-
tion of the great Shivaji, who was freely compared by the speakers
with other historical personages, such as Csesar, Napoleon, Maz-
. zini, Clive, and Hastings, though much to the disadvantage of
the latter. One learned Professor devoted his lecture specially
to the justification of Shivaji for the ' Killing of Afzul Khan,'
at the conclusion of which he pointed the following moral —
' ' Every Hindu, every Maratha, to whatever party he may
belong, must rejoice at this Shivaji festival. We all are striving
to regain our lost independence, and this terrible load is to be
uplifted by us all in combination. It will never be proper to
place obstacles in the way of any person, who, with a true mind,
follows the path of uplifting this burden in the manner he deems
SOME NOTABLE TRIALS. 45
fit. Our mutual dissensions impede our progress greatly. If
any one be crushing down the country from above, cut him off ;
but do not put impediments in the way of others. All occasions
like the present festival, which tend to unite the whole country,
must be welcome."
Another Professor following in the same strain said : —
"If no one blames Napoleon for committing two thousand
murders in Europe, if Csesar is considered merciful, though
he needlessly committed slaughter in Gaul many a time,
why should so virulent an attack be made on Shri Shivaji
Maharaja for killing one or two persons ? The people who took
part in the French revolution denied that they committed mur-
ders, and maintained that they were only removing thorns from
their path. Why should not the same principle be made ap-
plicable to Maharashtra " {i.e., the Mahratta country) ?
Whatever other speakers may have lacked in animation
and vigour was amply compensated by the President himself,
who brought the meeting to a close. The following are some
passages from his speech — " If thieves enter our house, and we
have not strength in our wrists to drive them out, we should
without hesitation shut them up and burn them alive. God
has not conferred upon the Mlenchhas (foreigners) the grant
inscribed on copperplate of the Kingdom of Hindustan. The
Maharaja strove to drive them away from the land of his birth ;
he did not thereby commit the sin of coveting what belonged to
others. Do not circumscribe your vision like a frog in a well.
Get out of the Penal Code, enter into the extremely high atmos-
phere of the Shrimat Bhagavatgita, and consider the actions of
great men."
In commenting on these extracts from the Kesari it was
contended, on behalf of the Crown, that, though ' ' there was no-
thing necessarily disloyal in celebrating the anniversary of Shivaji,
who was unquestionably a great and distinguished man, advan-
tage had been taken of the celebration to use language with re-
ference to the British Government which was intended to excite
disafEection," and to incite its readers "to follow the example
of Shivaji and overthrow British rule." One of the articles
" contained a clear attempt to justify political assassination,"
and it was a significant fact, though no connection could be ac-
46 THE LAW OF SEDITION.
tually traced, that "within a week of their publication Mr. Ayerst
and Mr. Rand had been murdered at Poona." It was also con-
tended that a comparison had been drawn " beltween the condi-
tion of the people under Shiva ji and under British rule
■altogether unfavourable to the latter," and that this was done
" for the purpose of exciting disaffection."
For the defence it was argued that " the articles describing
the sufferings of the people were quite consistent with loyalty.
They no doubt set forth grievances, but it was not seditious to
do that." " The articles on the Jubilee showed a genuine loy-
alty." " No doubt there were articles in praise of Sbivaji,"
but they " only expressed a general admiration for him as a man
of extraordinary power and talent ; " and further that " the
object of the accused was clearly only to create a national senti-
ment, just as the Scotch, Welsh and Irish people by their national
■celebrations endeavour to keep alive and foster a national spirit."
There was no suggestion of " overthrowing the British Govern-
ment."
It was further sought to construe the section by reference
to the speech of Sir James Stephen in Council, on the passing
of the Bill in 1870, as had been done in the Bangohasi
• case, but this was disallowed by the Judge on the authority of
the Privy Council ruling in the case of The Administrator-
General of Bengal v. Premlal (22 I. A., 107). Counsel also
referred to the charge of Cave, J., in Reg. v. Burns, and of
"Fitzgerald, J., in Reg. v. Sullivan (see Chs. ii — in).
His lordship in charging the jury explained first the indivi-
dual responsibility of each of the accused, and then proceeded to
expound the law as follows : — " In the first place, in con-
struing the section, I do not propose to discuss the English
law of seditious libel, though I have most fully considered
the cases to which counsel has referred, and the writings of
Sir James Stephen and others on the subject. I believe that
the explanation which I shall give you is not in any way in-
consistent with the best English authorities ; but in England
the ofience of seditious libel is not a statutory ofEence defined
by Act of Parliament, but a common law misdemeanour ela-
borated by the decisions of Judges. In this country the law
SOME NOTABLE TRIALS. 47
to be applied is the Penal Code. I will now ask you to look
at the section and the way it is worded."
His lordship thereupon read the section as it then stood (see
€h. i), and continued : — " You will observe that the section con-
sists of two parts : first a general clause, and then an explanation.
The object of the explanation is a negative one, to show that
•certain acts which might otherwise be regarded as exciting or
Attempting to excite disafiection are not to be so regarded.
We must, therefore, first consider the first or general clause
of the section by itself, and then see how far the explanation
■qualifies it. The offence as defined by the first clause is excit-
ing or attempting to excite feelings of disaffection to the
Oovernment. What are ' feelings of disaffection ? ' It means
hatred, enmity, dislike, hostility, contempt, and every form of
ill-will to the Government. ' Disloyalty ' is perhaj^s the best
general term, comprehending every possible form of bad
feeling to the Government. That is what the law means by the
disaffection which a man must not excite or attempt to excite ;
he must not make or try to make others feel enmity of any
kind towards the Government." He subsequently added, " The
word ■ disaffection ' covers, in my opinion, all those terms."
"You will observe," he continued, " that the amount or
intensity of the disaffection is absolutely immaterial except per-
haps in dealing with the question of punishment : if a man ex-
cites or attempts to excite feelings of disaffection, great or
small, he is guilty under the section. In the next place it
is absolutely immaterial whether any feelings of disaffection
have been excited or not by the publication in question.
You will observe that the section places on absolutely the
same footing the successful exciting of feelings of disaffection,
And the unsuccessful attempt to excite them, so that if you
find that either of the prisoners has tried to excite such feelings
in others, you must convict him even if there is nothing to
show that he succeeded."
"Again," he added, "it is important that you should
fully realise another point. It is not the exciting or attempt-
ing to excite mutiny or rebellion, or any sort of actual
•disturbance, great or small. Whether any disturbance or out-
break was caused by these articles is absolutely immaterial.
18 THE LAW OF SEDITION.
I am aware that some distinguislied persons have thought
that there can be no offence against the section unless the
accused either counsels or suggests rebellion or forcible resist-
ance to the Government. In my opinion, that view is ab-
solutely opposed to the express words of the section itself,
which as plainly as possible makes the exciting or attempting
to excite certain feelings, and not the inducing or attempting
to induce to any course of action, such as rebellion or forcible
resistance, the test of guilt. I can only account for such a
view by attributing it to a complete misreading of the explana-
tion attached to the section, and to a mis-application of it
beyond its true scope."
In dealing with the explanation in the latter portion of the
section his lordship said : — ' ' Its object is to protect from the
condemnation pronounced by the first clause certain acts which
it distinguishes from the disloyal attempts which the first clause
deals with. The thing protected by the explanation is 'the
makinc of comments on the measures of the Government' with
a certain intention. This shows that the explanation has a
strictlv defined and limited scope." "It does not apply to
any writing which consists not merely of comments upon
Government measures, but of attacks upon the Government
itself, its existence, its essential characteristics, its motives, or
its feelings towards the people."
" A man may criticise or comment on any measure or act of
the Government, whether legislative or executive, and freely
express his opinion upon it. He may express the strongest
condemnation of such measures and he may do so severely,
and even unreasonably, perversely and unfairly. So long as he
confines himself to that he will be protected by the explana-
tion. But if he goes beyond that, and, whether in the course
of comments upon measures or not, holds up the Government
itself to the hatred or contempt of his readers — as, for instailce,
by attributing to it every sort of evil and misfortune suffered
by the people, or dwelling adversely on its foreign origin
and character, or imputing to it base motives, or accusing it
of hostility or indifference to the welfare of the people — then
he is guilty under the section, and the explanation will not
save him."
SOME NOTABLE TRIALS. 49
la construing the concluding terms of this clause, which
have since been altered, his lordship alluded to their very
apparent liability to misconstruction as follows : — ' ' I believe
that it is an inaccurate reading of this part of the explanation,
a too exclusive attention to the expressions about obedience
and resistance, and an insufficient attention to other expres-
sions equally important, which has caused some people to mis-
understand the whole section, and to imagine that no one can
be convicted under it, even if he assails the Government itself
and not merely Government measures, unless he counsels or
suggests rebellion or forcible resistance."
In view of these significant remarks the obvious necessity
of importing plainer language into the law was at once recog-
nised, and legislation speedily followed.
In dealing with the extracts from the Kesari his lordship
said : "' You will thus see that the whole question is one of in-
tention of the accused in publishing these articles." " But
you may ask ' how can we tell whether his intention was simply
to publish a historical discussion about Shivaji and Afzul Khan,
or whether it was to stir up, under that guise, hatred against
the Government ? ' You must gather the intention as best you
can from the language of the articles ; and you may also take
into consideration, under certain conditions, the other articles
that have been put in evidence. But the first and most import-
ant index of the intention of the writer or publisher of a news-
paper article is the language of the article itself. What is the
intention which the articles themselves convey to your minds ?
In considering this, you must first ask yourselves what would be
the natural and probable effect of reading such articles in
the minds of the readers of the Kesari, to whom they were
addressed ? Would the feeling produced be one of hatred to
the Government, or would it be simply one of interest in a poem
and a historical discussion about Shivaji and Afzul Khan, and
so forth ? "
His lordship continued : — " But in the next place, in
judging of the intention of the accused, you must be guided not
only by your estimate of the effect of the articles upon the minds,
of their readers, but also by your common sense, your knowledge
of the world, your understanding of the meaning of words, and
D, LS 4
50 THE LAW OF SEDITION.
your experience of the way in which a man writes when he is
animated by a particular feeling."
" It may not be easy to express the difierence in words ;
but the difference in tone and spirit and general drift between
a writer who is trying to stir up ill-will and one who is not, is
generally unmistakable, whether the writing is a private letter,
or a leading article, or a poem, or the report of a discussion.
You can form a pretty accurate notion of what a man is driving
at, or what he wants to convey, from a perusal of the writing,
and can generally tell whether the writing is inspired by good-
will or is meant to create ill-will. It is not very difficult to dis-
tinguish between the language of hostility and the language of
loyalty and good- will, or of criticism and comment."
Such are the main principles of the law of sedition as laid
down by Justice Strachey in his charge to the jury in Tilak's
case. It will be necessary to refer . to it again as an authority
on many incidental questions. This charge derives a special
importance from the fact that it came before the Privy Council
and was considered by Lords Halsbury, Hobhouse, and Davey,
and Sir Richard Couch. The Lord Chancellor in delivering
judgment said : — " Their Lordships are of opinion, taking a view
of the whole of the summing-up, which is of very great length*
that there is nothing in that summing-up which calls upon them
to indicate any dissent from it or any necessity to correct what
is therein contained."
It was moreover cited at great length and approved by a Full
Bench of the Allahabad High Court, and was mainly instrumental
in bringing about the legislative changes that followed.
Tilak was found guilty by a majority of six to three, and
sentenced to eighteen months' rigorous imprisonment.
CHAPTER VI.
SOME NOTABLE TRIALS — COntd.
The next trial of note also took place in Bombay, and about
the same time as Tilak's case. ' It came up on appeal to the High
Court a few months later and was heard by a Full Bench. It is
the case of Queen-Empress v. Ramchandra Narayan and another
(22 Bom. 152), and the decision is of the highest value as afford-
ing not only the interpretations of the learned Judges as to the
law of sedition, but also their views on its proper application,
and the measure of punishment to be awarded for the crime.
The first accused was the editor, and the second the proprietor,
and publisher of a newspaper called the Pratod, which was print-
ed and published at Islampur in the Satara district. The
appellants had been convicted by the Sessions Judge of Satara
and sentenced respectively to transportation for life and for seven
years.
The article charged as seditious appeared in the issue of
the 17th May 1897, and was as follows : —
" Preparations for becoming Independent.^'
' ' Canada is a country in North America under the British
rule, the people of which have now become intolerant of their
subjection to England. Though they are subject to the British
people, they are not efieminate like the people of India. It is
not their hard lot to starve themselves for filling the purse of
Englishmen: They are not obliged to pay a pie to England.
Their income from land-revenue and taxes are expended for
their own benefit. They enact their own laws independently,
and appoint their own ofi&cers, except one or two who are sent
from England. Of even this nominal dependence they have
become impatient, and are now busy making efforts to throw it
off. It is natural for them to envy their neighbours, who,
after casting off their English nationality, and assuming the
designation of Americans, are now enjoying the blessings of a
free nation. They have appointed a committee to frame an
independent constitution for themselves. This committee
52 THE LAW OF SEDITION.
has issued a notification of their aims, copies of which
have been distributed even in India. In this notification they
have clearly stated their intention of throwing off the English
yoke, and establishing a Government of their own. Like us,
they are not men given to prattling, but can act up to their word.
There is also strong unity amongst them. Spirited men show
by their actions what stuff they are made of. There are no peo-
ple on earth who are so effeminate and helpless as those of India.
We have become so callous and shameless that we do not feel
humiliation, while we are laughed at by all nations for losing
such a vast and gold-like country as India. What manliness
we can exhibit in such a condition is self-evident."
Two other articles were put in evidence to prove animus.
The arguments of Counsel are unfortunately not reported. The
comments of Sir C. Farran, C. J., on the article in question,
however, are as follows : — "It opens with an untruthful represen-
tation of the aims and wishes of the Canadian subjects of
Her Majesty." " Having started with this misleading account
of the position of the Canadians, their aims and wishes, he pro-
ceeds to contrast their political position with that of Her Ma-
jesty's Indian subjects, greatly to the prejudice of the latter.
The writer then goes on to address his readers. He informs them
that they once possessed a vast and gold-like country — India — and
assures them that they are laughed at by all nations for having
lost it. He upbraids them for their effeminacy and want of
spirit, and urges them to action : ' Spirited men show by their
actions what stuff they are made of. ' He ends with this enig-
matic passage : ' How we can exhibit manliness in such a condi-
tion is self-evident.' The article as a whole has, J think, the
object of making its readers impatient of their allegiance to a
foreign Sovereign, and creating in them the desire of casting off
their dependence upon England — in other words, of exciting
disaffection to the Government established by law in British
India."
Justice Parsons, concurring, expressed his views on the article
thus : — " Under the false representation of what the Canadians
were about to do, it chides the people of India for their effemin-
acy and want of spirit, and exhorts them to exhibit some manli-
ness, in order to cast off their subjection to the English rule, to
SOME NOTABLE TRIALS. 53
establish a Government of their own, and to become independent.
In veiled language, but in no uncertain tone, it attempts to excite
the readers to subvert the Government, and replace it by
another."
Justice Ranade, commenting on the same article, said : —
*' Its evident animus was to excite a feeling of aversion and
hatred. It was not directed SfS an attack against any particular
act or measure of Government or its ofl&cers, but it appears to
be the outcome of a general sense of vague dissatisfaction with
the existing political constitution and order. As a statement of
well-known contemporary facts, it is not true to state that
Canada is desirous of throwing off the English connection. An
imaginary ideal of independence is held up for imitation, and the
people of this country are blamed for their apathy in the matter,
and scornfully disparaged for their want of spirit. It is quite clear,
therefore, that the words are calculated to create the feeling
which the law reprobates and seeks to punish. "
These observations are of the highest importance as
instances of judicial criticism on concrete examples of
seditious matter, and may furnish a guide for the interpretation
of similar material. It is, however, the judicial interpretation
of the law as it then stood, prior to its alteration, that forms
perhaps the most important part of this Full Bench decision.
Sir C. Farran, C. J., after citing the section (see Ch. i)
observed : — " Neither the section nor the explanation, however,
defines the term ' disaffection,' nor is it defined in other parts of
the Code." His lordship then proceeded to determine its mean-
ing. Referring to Murray's Dictionary he found the special
signification of the word to be — " Political alienation or discon-
tent, a spirit of disloyalty to the Government or existing author-
ity," and then proceeded — " An attempt to excite feelings of dis-
affection to the Government is equivalent to an attempt to produce
hatred of Government as established by law, to excite political
discontent, and alienate the people from their allegiance."
" This," he added, " is an offence under English law. In Ste-
phen's Criminal Law the publication of a libel with seditious intent
is classed as a misdemeanour, and seditious intention is thus
defined : ' A seditious intention is an intention to bring into hatred
or contempt, or to excite disaffection against the person of Her
54 THE LAW OF SEDITION.
Majesty, her heirs or successors, or the Government and constitu-
tion of the United Kingdom as by law established, or to raise
discontent or disaffection amongst Her Majesty's subjects' (see
Ch. ii). I quote the passage as conveniently summarising the
English law. It is, I think, fully supported by the rulings of the
English Judges and all the recognised text-books on criminal
law."
" Turning to the explanation," he continued, " we find
that disapprobation of the measures of Government is not dis-
affection, provided that it is of such a nature as to be compatible
with a disposition to obey Government and to support its lawful
authority against attempts to resist or subvert it. The meaning
of that passage appears to me to be that a loyal subject who dis-
approves Government measures is not to be deemed disloyal
or disaffected on that account if, notwithstanding his disappro-
bation of such measures, he is ready to obey and support Govern-
ment. If he is at heart loyal, he is not disaffected merely
because he disapproves certain measures of Government. On the
other hand "he may be a rebel at heart, though for the time being
prepared to obey and support Government. It consequently
follows that the publication of a libel exciting to disaffection
against Government itself — the constitution established by law —
may be an offence, though the libel may insist on the desirability
or expediency of obeying and supporting Government."
It would seem to follow from his lordship's remarks that a
man might be clearly guilty of exciting disaffection and yet have
escaped through the meshes of the explanation by the method
indicated. If this was so the necessity for altering it is abund-
antly clear. His lordship added — " The ordinary meaning of
the term ' disaffection ' in the main portion of the section is not, I
think, varied by the explanation."
Justice Parsons' interpretation of the term ' disaffection '^
is also important. " It must be taken," he said, " to be em-
ployed in its special sense as signifying political alienation or
discontent, that is to say, a feeling of disloyalty to the Government
or existing power, which tends to a disposition not to obey, but
to resist and attempt to subvert that Government or power.
Its meaning thus exactly corresponds to the almost, if not quite,
universally accepted meaning of its adjective * disaffected.' To
SOME NOTABLE TRIALS. 55
make or attempt to make a person disaffected, that is to
excite or attempt to excite in him a feeling of disloyalty to
Government, or to excite or attempt to excite in his mind a dis-
position to disobey, to resist the authority of, or to subvert the
existing Government, is the act under this section declared an
offence."
Justice Ranade's definition of the same term is a model of
precision and apt phraseolog5^ After an elaborate inquiry into
the English law of sedition, he said : — "Disaffection, as thus
judicially paraphrased, is a positive political distemper, and not
a mere absence or negation of love or good-will. It is a positive
feeling of aversion which is akin to ' disloyalty,' a defiant in-
subordination of authority, or when it is not defiant, it secretly
seeks to alienate the people, and weaken the bond of allegiance,
and prepossesses the minds of the people with avowed or secret
animosity to Government, a feeling which tends to bring the
Government into hatred or contempt by imputing base or corrupt
motives to it, make^ men indisposed to obey or support the
laws of the realm, and promotes discontent and public disorder."
The convictions of both the accused were confirmed, but the
sentences, which were found to be out of all proportion to the
gravity of the offence, were reduced to one year's rigorous and
three months' simple imprisonment. The reasons for this were
specifically set out by the Chief Justice, and will be referred
to hereafter (see Ch. xi).
The last of the three notable trials of the year 1897 took
place at Allahabad. This was the case of Queen-Empress v.
Amba Prasad (20 All. 5-5), which came up on appeal before a
Full Bench of the High Court on the 14th December of that. year.
The report of the case unfortunately contains no statement of
the facts, no arguments of Counsel, and no indication of the
nature of the matter charged as seditious. The only facts
available are such as can be gathered from the judgment of the
Full Bench, which was delivered by Sir John Edge, C. J.
It appears from this that the accused Amba Prasad, a Hindu
Kayesth, was a native of Moradabad, and" that he was the pro-
prietor, editor, and publisher of a newspaper called the Jami-ul-
TJlam. The paper was published in Moradabad, and, as its name
would indicate, had its chief circulation among Mahomedans.
56 THE LAW OF SEDITION.
The article in question which would seem to have been of a grossly
seditious character, had appeared in the issue of the l-ith July.
At his trial before the Sessions Judge of Moradabad the accused
pleaded guilty, and was sentenced to eighteen months' rigorous
imprisonment. Against this sentence he appealed to the High
Court.
Their lordships dismissed the appeal in the following terms : —
" In the case before us Amba Prasad has pleaded guilty to an
attempt, by the publication of the article in question, to excite
feelings of disaffection to the Government established by law in
British India. He was well advised to plead guilty, as on an
examination of that article the only possible defence open to him
was that of insanity. His counsel before us could not suggest
that there was the slightest justification or excuse for the gross
and libellous charges against the Grovernment contained in the
article. Amba Prasad, in publishing that article, could have had
but one object in view, and that was to excite amongst Her
Majesty's Indian subjects feelings of disaffection, disloyalty
to the Government established by law in British India. The
particular article, taken in conjunction with other articles pub-
lished in his newspaper, shows that his object was to excite not
merely passive disaffection, which in itself is an offence, within
section 124A of the Indian Penal Code (see Ch. i), but active dis-
loyalty and rebellion amongst his Muhammadan fellow-subjects.
The criminal offence which Amba Prasad committed is an exceed-
ingly grave one. That offence he committed regardless of the
ruin, misery, and punishment which would have fallen on any
of his fellow-countrymen who might have been so ignorant as
to believe that the statements which he published were true,
and who acting on such belief might have entered upon a course
of active disloyalty to the Government. Amba Prasad is not a
Muhammadan; he is a Kayesth." "Amba Prosad alleges in
his grounds of appeal that his plea of guilty, and an apology,
which he tendered after he had been committed for trial, entitled
him to have only a^ nominal punishment inflicted upon him.
His conviction was inevitable. An apology, particularly made
after commitment, in such a case as this, need not be considered.
Having regard to the gravity of the offence which Amba Prasad
committed, and to the misery, ruin, and punishment which he
SOME NOTABLE TRIALS. 57
might have brought upon ignorant people, the sentence which
was passed on him was entirely inadequate. We dismiss this
appeal."
Such was the conclusion arrived at on the facts, but it is not
this so much as the elaborate inquiry into the law that preceded
it, which constitutes the special importance of this case. After
an exhaustive review of the three notable trials which had taken
place, and a careful examination of all the judicial views which
had been expressed from time to time, their lordships proceeded
to lay down their own views as to the true meaning of the sec-
tion — a question which admittedly was not entirely free from
difficulty.
" If there be any difficulty as to the true meaning of section
124A," their lordships said, "it is caused by the Explanation
which forms part of that section" (see Ch. i). Justice Strachey
had experienced a similar difficulty, and Sir C. Farran had been
hardly satisfied with the phraseology of it.
"In our opinion," their lordships continued, "any one
who, by any of the means referred to in section 124A of the
Indian Penal Code, excites or attempts to excite feelings of
hatred, dislike, ill-will, enmity or hostility towards the Govern-
ment established by law in British India, excites or attempts
to excite, as the case may be, feelings of ' disaffection,' as
that term is used in section 124A, no matter how guardedly
he may attempt to conceal his real object. It is obvious that
feelings of hatred, dislike, ill-will, enmity, or hostility towards
the Government, must be inconsistent with and incompatible
with a disposition to render obedience to the lawful authority
of the Government, and to support that lawful authority against
unlawful attempts to subvert or resist it. The ' disapprobation
of the measures of the Government ' may or may not, in any
particular case, be the text upon which the speech is made, or
the article or letter is written ; but if, upon a fair and impar-
tial consideration of what was spoken or written, it is reason-
ably obvious that the intention of the speaker or writer was to
excite feelings of disaffection to the Government established by
law in British India, then a Court or a jury should find that the
speaker or writer or publisher, as the case might be, had com-
mitted the offence of attempting to excite feelings of disafi^ec-
58 THE LAW OP SEDITION.
tion to the Government established by law in British India. To
paraphrase is dangerous, but it appears to us that the disaffec-
tion of section 124 A is ' disloyalty' ; that is the sense in
which the word ' disaffection' has been generally used and
understood during the century. We are further of opinion that
the ordinary meaning of disaffection in section 124A, having
regard to the evils at which section 124A strikes, is not varied
by the explanation contained in the section.'' The same view
had been previously expressed by Sir C. Farran, C. J., in the
case before mentioned.
" The intention of a speaker, writer or publisher " their
lordships continued, " may be inferred from the particular
speech, article or letter, or it may be proved from that speech,
article or letter, considered in conjunction with what such
speaker, writer, or publisher, has said, written, or published on
another or other occasions. Where it is ascertained that the
intention of the speaker, writer, or publisher was to excite
feelings of disaffection to the Government established by law in
British India, it is immaterial whether or not the words spoken*
written, or published, could have the effect of exciting such
feelings of disaffection, and it is immaterial whether the words
were true or false, and, except on the question of punishment, or
in a case in which the speaker, writer, or publisher is charged
with having excited such feelings of disaffection, it is immaterial
whether or not the words did, in fact, excite such feelings of
disaffection."
The above passage from the judgment of the Full Bench
was subsequently cited in Council as containing a complete sum-
mary of the law which had been laid down in the previous cases.
Before proceeding, however, to consider the changes that were
now introduced into the law, by the remodelling of the sec-
tion relating to sedition, it will be useful to review shortly the
result of the four cases which have been briefly summarised, and
to ascertain to what extent the section had been affected by the
judicial utterances of the learned judges who took part in the
trials.
In the first place it seems pretty clear that the term ' dis-
affection ' had proved a vexata qucestio, for many definitions of
the word had been offered, which were not all exactly alike-
SOME NOTABLE TRIALS. 59'
Sir C. Petheram, C. J., and Justice Strachey appeared to favour
a construction which implied a negative state of mind, opposed
to good-will and affection ; while Justice Parsons and Justice
Ranade expressly favoured an interpretation which implied a
positive mental condition, akin to political alienation or disloyalty.
In describing the offence of creating ' disaffection ' the Eng-
lish law had been freely resorted to. Sir C. Petheram, C. J., had
said : — ' ' It is sufficient for the purposes of the section that the
words used are calculated to excite feelings of ill-will against the
Government, and to hold it up to the hatred and contempt of the
people." Sir C. Farran, C. J., who cited Sir James Stephen,
described the offence as "an attempt to produce hatred of
Government as established by law, to excite political discontent,
and alienate the people from their allegiance." There was, more-
over, a general consensus that exciting disaffection was equivalent
to exciting disloyalty. The term had been first employed by
Justice Strachey, who said : — " 'Disloyalty' is perhaps the best
general term, comprehending every possible form of bad feeling
to the Government." It was finally employed by Sir John Edge,
C. J., in summing up the conclusions of the Full Bench, when he
said : — To paraphrase is dangerous, but it appears to us that
the ' disaffection ' of section 124A is ' disloyalty : ' that is the
sense in which the word ' disaffection ' has been generally used
and understood during the century."
If the word ' disaffection ' had presented difficulties, the
' explanation ' to the section had undoubtedly proved a verit-
able crux. The question how far it qualified the main provision
had been anxiously considered. The Chief Justices of Bombay
and Allahabad were both of opinion that its meaning was not
varied by the ' explanation.' Justice Strachey considered that
the explanation, or at least the latter part of it, had given rise
to serious misconception. It had led people to suppose that
nothing short of an incitement to rebellion was an offence within
the meaning of the section ; and such a view of the law was cer-
tainly opposed to its commonly accepted signification. The
' explanation ' was therefore clearly ambiguous, and plainer
language was wanted to prevent the possibility of misconception.
Such was the situation which presented itself to the Legis-
lature towards the end of the year 1897.
CHAPTER VII.
THE LAV/ AMENDED.
A Bill to amend the Penal Code in relation to Extra-
territorial oSences had been for some time on the legislative
anvil during the year 1897, when circumstances drew the
attention of the Government to the expediency of amending at
the same time the law of sedition.
The raison d'etre of the contemplated amendment was
stated by the Hon'ble Mr. Chalmers, the member in charge of
the Bill, on the 25th December, of that year, in the following
terms : — " As the Council are aware, recent events in India have
called prominent attention to the law relating to seditious utter-
ances and writings. We have had anxiously to consider the
state of the law regarding these matters and to decide whether,
and in what respects, it required amendment. AVe determined
that we would do nothing hastily, and that the course we adopted
should be the result of cool and deliberate consideration."
"Two different lines of action," he continued, "were
open to us. The first was to re-enact a Press Law similar to the
Vernacular Press Act of 1878. The second was to amend the
general law relating to sedition and cognate offences, so as to
make it efficient for its purpose. We have come to the conclu-
sion that the second course is the right one for us to take."
" We welcome all fair, candid, and honest criticism," he
added, ' ' and, speaking for ourselves, we care very little as to
the terms or language in which such criticism may be expressed.
The essential principle of English law is this. Every man is free
to speak, write and print, whatever he pleases, without asking
the leave or permission of any authority. But if he speaks,
■\\Tites, or prints anything which contravenes the law of the
land, he is liable to be proceeded against and punished. As
long as a man keeps within the law no one can interfere with
him. But, if he breaks the law, he is liable to punishment by
a Court of Justice in the ordinary course of law. This seems
to us a sound and healthy guiding principle, and we have
1H#LAW AMENDED. 61
deterniiiied to adhere to it. But we are also determined that
the law shall not be a dead-letter, and that offenders against the
law of the land shall be capable of being promptly brought to
book."
The Hon'ble Member then proceeded to point out the flaws
in the law as it existed, as well as the urgency of amending it.
■'As for the section," he said, " which deals with the offence of
exciting disaffection against the Government, or, as it is called
in England, sedition, I cannot say that that section strikes me
as a model of clear drafting. That section was introduced into
the Penal Code by Sir Fitzjames Stephen in 1870. In introduc-
ing the Bill I believe he stated that his intention was to assimi-
late the law of India to the law of England as regards the offence
of sedition. The interpretation of the section has recently been
discussed before the Calcutta, Bombay, and Allahabad High
Courts, and it has been interpreted in accordance with English
law. The result of the cases is to establish that it is a criminal
offence to stir up feelings of contempt or hatred for the Govern-
ment, and that such conduct is none the less an offence because
resort to actual violence is not advocated. But no one can read
the able arguments addressed to the Courts by Counsel for the
accused in the Banyobasi and Tilak cases without coming to the
conclusion that the law might be expressed in clearer and less
equivocal terms. When law is codified, the codes should be
as explicit as possible. ' '
" Moreover," he continued, " though the Calcutta, Bombay,
and Allahabad Judges have substantially agreed in the interpre-
tation of section 124A, their decisions are not technically binding
on other High Courts. Having regard to these considerations
we think it desirable to amend and re-draft section 124A, so as
to bring it clearly into accord with English law. In England,
words spoken or written with seditious intent constitute a cri-
minal, offence, and the intent is presumed from the natural mean-
ing of the words themselves, without reference to the actual
feelings of the person who used them. In other words, the law
applies a purely objective test. A seditious intention is thus
defined in Stephen's ' Digest of the Criminal Law.'' It is ' an
intention to bring into hatred or contempt, or to excite disaffec-
tion against the person of Her Majesty, Her heirs or successors,
•62 THE LAW OF SEd!tION.
or the Government of the United Kingdom as by law established,
or either House of Parliament, or the administration of justice,
or to excite Her Majesty's subjects to attempt otherwise than by
lawful means the alteration of any matter in Church or State,
or to raise discontent or disaffection amongst Her Majestj'-'s
subjects, or to promote feelings of hostility or ill-will between
difTerent classes of such subjects.' Now adapting that defini-
tion to the language of the Indian Penal Code and the circum-
stances of India, we propose that section 124A shall be
repealed, and that the following section shall be substituted
therefor : — ' Whoever by words, either spoken or written, or
by signs, or by visible representation, or otherwise, brings or
attempts to brjng into hatred or contempt, or excites or attempts
to excite disaffection towards Her Majesty or the Government,
(or promotes or attempts to promote feelings of enmity or
ill-will between different classes of Her Majesty's subjects) shall
he punished with transportation for life or any shorter term,
to which fine may be added, or with imprisonment which may
extend to ten years, to which fine may be added, or with fine.
Explanation 1. — The expression 'disaffection' includes dis-
loyalty and all feelings of enmity (or ill-will).
Explanation 2. — Comments on the measures of the Govern-
ment with a view to obtain their alteration by lawful means,
without exciting or attempting to excite hatred, contempt or
disaffection do not constitute an ofTence.'"
Such was the measure submitted to the Select Committee
for consideration. The words within brackets were ultimately
omitted by them, and the provision dealing with the promoting
of class-hatred was placed by itself as a separate offence under
section 1.53A. It \\i]\ be referred to hereafter under the class
of cognate offences.
The Hon'ble Member concluded his remarks on the new pro-
vision as follows : — ' ' Let me say a word or two as to the scope
of the new section. There is nothing in it which in any way in-
terferes with the fair and free discussion of public matters. People
are at liberty to criticise the action and conduct of the Gov-
ernment in all its departments. And more than that, they are
at liberty to bestir themselves to procure reforms, and to obtain
such alterations of the law as they may think desirable, provided
THE Law amended. 63
they do so by lawful and constitutional means. There is nothing '
in the section to prohibit this, but we have added Explanation 2
to the section in order to affirm this principle expressly. I wish
further to point this out. Subject to one possible exception,
our proposed new section in no wise alters the law at present in
force in India. It merely affirms in, I hope, unmistakable terms,
the consentient opinions of the various High Courts which have
been called upon to interpret the existing section 124A."
The possible exception referred to was the provision which
was ultimately removed from the section, and incorporated in
the Code as section 153 A.
On the 18th February, 1898, the Legislative Council assem-
bled for the final consideration of the Bill. The Sclent Committee
had made various concessions to the critics, some of whose sug-
gestions had been adopted. The provision regarding class-
hatred, as already mentioned, had been extracted, and assigned
a more important position in the Code, and the term ' ill-will '
had also been struck out. as being too wide and vague in its
meaning.
In addition to these changes, the term ' Government '
had been replaced by ' Government established by law in Bri-
tish India,' the original words of the section ; the maximum
term of imprisonment had been altered from ten years to three
years ; and a third Explanation had been added, to prevent
misapprehension. This last addition M^as thus explained by
the Hon'ble Member : — ' ' We have added a further explanation
to clause 124A. The second explanation was intended to protect
fair and honest criticism which had for its object the alteration of
the policy pursued by the Government in any particular case.
Some people were apprehensive that the express declaration of
this principle might be held impliedly to negative the right of
people to criticise Government action when that criticism could
not lead to a reversal of such action ; for instance criticism on
past expenditure, or criticism on an appointment which the cri-
tic may think objectionable. I think this apprehension was
quite unfounded, but in order to allay it we have introduced
the third explanation.''^
Some of the main objections, however, to the Bill were ad-
vanced on this occasion. It was contended that the existing
64 THE LAW OF SEDITION.
* law was being altered and extended, while there was no occasion
for it. To this it was answered : — "No one who candidly and
carefully reads the consentient decisions of the Calcutta, Bombay
and Allahabad High Courts can come to any other conclusion
than this — namely, that in our new section we are keeping well
within the existing law, though, we are expressing that law in
less ambiguous language."
" Then it is urged," the Hon'ble Member continued,
" that the proposed clause goes further than English law, and
again some passages in Sir Fitzjames Stephen's speech are
referred to. All I can say is this. If in 1870 he thought that
an appeal to force was a necessary constituent of sedition, he
afterwards changed his mind. Afuer he had served on the
Criminal Code Commission, which was composed of some cf the
most distinguished Judges of modern times, he published his
Digest of the English Criminal Law. In Article 96 of that Digest
he states the English law in the clear and precise terms which
I read to the Council on the 21st December. There is nothing
in that article, and there is nothing in the almost identical article
framed by the Criminal Code Commission to suggest that an appeal
to violence is a necessary factor in the offence. I take it that
the offence is complete, both in India and England, if it be prov-
ed that the offender has attempted to excite disaffection towards
the Government. It is not necessary that he should himself
appeal to force. What he does is to excite or attempt to excite
feelings of discontent which make people ready for mischief
should the opportunity arise."
"But after all," he added, "these arguments are more
or less academic. No one in his senses would contend that
because a given law is good and suitable in England, it is there-
fore good and suitable in India. If a rule of law exists in England
we may fairly consider whether it is suitable to India, but the
answer to the question must always depend on the conditions
which prevail in India. How much license of speech can be safely
allowed is a question of time and place. If I smoke a cigar on
the maidan it pleases me, and hurts no one else. If I smoke a
cigar in the powder magazine of the Fort, I endanger the lives
of many, and do an act well deserving punishment. Language
may be tolerated in England which it is unsafe to tolerate in India,
THE LAW AMENDED. 65
because in India it is apt to be transformed into action instead
of passing off as harmless gas. In legislating for India we must
have regard to Indian conditions, and we must rely mainly on
the advice of those who speak under the weight of responsibi-
lity and have the peace and good government of India under,
their charge."
The difference between the social conditions prevailing in
England and those of India appears to have been entirely over-
looked by the most vigorous opponents of the Bill, for their argu-
ments would seem to be based on the assumption of their com-
plete similarity. This would account for the strenuous efforts
made for the introduction of the English law, or what they sup-
posed to be the English law of sedition into India.
On this point the observations of the Lieutenant-Governor
of Bengal, Sir Alexander Mackenzie, carry with them the weight
of authority and experience. " Much of the outcry," he said,
' ' against the present Bill rests upon its supposed divergence
from the law of England on seditious libel, and on the assertion
that the law as settled in 1870 was sufficient and ought to be
final. Now I venture to assert these two propositions — first,
that the law of England, built up by judicial rulings to meet the
circumstances of a homogeneous people directly interested in and
sharing in its own government, is not necessarily a norm to which
the law of India ought strictly to conform ; and second, that
the conditions of the country have themselves so altered since
1870 that what was adequate then is not necessarily adequate
now. As to the first point — If the section is in strict accord
with the English law, all criticism of it loses weight ; if it is not,
there is in the very great difference in the conditions of the two
countries ample justification for any deviation from the English
law necessary for effectively checking the offence of sedition in
India. It is clear that a sedition law which is adequate for a
people ruled by a government of its own nationality and faith
may be inadequate, or in some respects unsuited, for a country
under foreign rule and inhabited by many races, with diverse
customs and conflicting creeds. It is impossible in India to ac-
cept the test of direct incitement to violence or intention to
commit rebellion, and limit the interference of the Government
to such cases. It is not the apparent intention of the writers or
D, LS 5
66 THE LAW OF SEDITION.
speakers so mucli as the tendency of the writings or speeches which
has to be regarded, and the cumulative efiect of depreciatory
declamation on the minds of an ignorant and excitable popula-
tion has to be taken into consideration."
" As to the second point," he continued, " the necessity
for the proposed legislation is unquestionable. Ever since the
repeal of the Vernacular Press Act, the Native Press has been
year by year growing more reckless in its mode of writing about
the Government, Government officers, and Government measures.
Doubts having been always felt by the law officers as to the scope
of section 124A of the Penal Code, the general policy has
been to ignore these attacks. In Bengal the only Press prosecu-
tion for seditious writing has been that of the Bangobasi news-
paper, instituted in 1891, in which the jury disagreed, and
which terminated eventually in the acceptance of an apology
by the Government from the offending editor. The absence
of other prosecutions cannot, however, be urged as evidence
that seditious writing is rare in Bengal, and that an alteration
of the law is not therefore called for in this Province. Eesistance
to the Government by violence has, it is true, not been directly
suggested in the Bengal Press, and a sufficient reason for this
may be found in the character of the writers, who belong to,
and whose readers are, a people wanting in the warlike spirit of
many other races of India ; but there has been incessant writing
tending to bring the Government, whether in itself or through its
officers, into hatred and contempt, and such writing, though not
immediately leading to resistance by force to the Government,
cannot fail by its cumulative effect to create disaffection and ill-
will, and thus produce such a state of feeling as may eventually
prove dangerous to the maintenance of order and find its culmina-
tion in active resistance. Whether, then, we look at the ob-
jections which have been taken by the people themselves to the
interpretation of the present law by the Courts, or to the nature
of much that has been written in the Native Press, the necessity
for an amendment of the law is clear."
"To any one," he continued, "who studies, as I do from
Week to week, the utterances of the Press in India, nothing can
be more clear than that, though we seldom have such bold
sedition preached as led to the recent trials in Bombay, or
THE LAW AMENDED. 67
as prevailed here in 1870, we are now face to face with a far more
insidious and equally dangerous style of writing and speaking.
And this is an evil which is yearly growing, and with the
spread of what is called education is becoming more far-reaching
in its noxious effects. It is indeed, in my opinion, to our own
system of education that we owe all the trouble. I have lon»
been convinced that it is thoroughly unsound. We are turning
out by scores of thousands young men who are trained only in
words, look mainly for Government employment, and failing to
get it become, as the Maharaja of Travancore described them,
' a host ot discontented, disobedient, and sometimes trouble-
some young men.' This is the class that writes for the Native
Press, perorates on platforms, and generally vents its spleen
upon the Government which has not been able to find appoint-
ments for more than a fraction of its members. To honest,
well-informed criticism no English Government would ever
object. But every Government has the right to object when its
critics wander off from criticism to calumny. No Government,
such as ours in India can afford to allow the minds of an
ignorant and credulous oriental population to be gradually
poisoned and embittered by persistent calumny of the Govern-
ment and all its measures. If these sections lead to a more
careful, well-considered and responsible jommalism, they wall
confer a benefit not only on the State and the public, but on
the journalistic profession itself."
The wide difference betw^een the social conditions of the
two countries was freely discussed by other members of the
Council as well ; notably by Sir Griffith Evans, whose remarks
are both weighty and interesting. He said:— "The advantages
of free and intelligent criticism and discussion of the acts and
measures of Government, and of pointing out abuses and
failures and suggesting remedies, are apparent and undeniable,
and the liberty of the Press is a household word dear to the
heart of every Englishman. I am glad to think that a large
number of the newspapers in India, English and Vernacular;
have carried out these objects, and have discharged their duties
as fearless critics to the benefit alike of governors and governed.
But a free Press is an exotic in India, and indeed in Asia, and,
like plants and animals transplanted into new surroundings,
68 THE LAW OF SEDITION.
is liable to strange developments. For many years a portioa
of the Native Press, and particularly of the Vernacular Press,
has devoted itself to pouring forth a continual stream of
calumny and abuse of the British Government in India and to
teaching its readers that all their misfortunes, poverty and mise-
ries arise from a foreign Government, which draws away their
wealth and is callous to their miseries, and from whom they
can expect neither justice nor sympathy."
It might almost be thought that the Hon'ble Member was
here paraphrasing the articles in the Bangohasi, at the trial of
which he was Counsel for the Crown.
"Now it needs no argument," he continued, "to prove
that Avriting of this character, whatever the motives or ultimate
objects of the writers may be, circulated daily for years amongst
a credulous people, must tend to make them hate the cause of all
their woes. It is a hopeless task for any Government, especially
a foreign one, to endeavour to win or retain the affections of the
people by just government and solicitude for their benefit, if
the minds of the people are daily poisoned with matter of this,
kind, written in their own language and by men who know
how to appeal to their sympathies, credulity, and religious
feelings."
'* Some of the apologists of the Native Press," he added ,f
•' minimise the evil. But to those who have watched it, as I
have for thirty years, and for twenty years as a Member of this
Council, it is apparent that this is the work of a small minority
who have partaken of the cheap education of our schools and
who distil and sell the poisonous product of the ferment in their
heads of ill -assimilated and misapplied Western ideas. This
opinion is not a hasty one ; it is the same as I expressed in this
Council in 1878, and as was then expressed in weighty language
by the present Advocate-General of Bengal, whose knowledge
of the country none can deny, and who has never been accused
of want of sympathy with its inhabitants. He then said : —
* Having attentively considered these extracts, I am irresistibly
led to the conclusion that it is intended by these publications to
disseminate disaffection, to excite evil prejudices, to stir up dis-
content, and to produce mischief of the gravest character : in
short, to render the Government, its officers, and Europeans gene-
THE LAW AMENDED.
69
rally, hateful to the people. These are evil purposes which should
be repressed with a strong hand and their controversy restrained
from all further attempt to administer their subtile poison to
the lower orders of the people, to saturate their minds with evil
thoughts and to arouse their evil passions.' Since then the evil
has grown greatly."
From these important statements it would appear that the
measure introduced by Sir James Stephen in 1870 had not
proved effective in checking the license of a certain section of
the Native Press. That measure had been passed at the time
of the Wahabi conspirac}^, and it was probably framed, as
the Lieutenant-Governor elsewhere remarks, ' ' to meet that
exigency. ' '
At all events in 1878 the state of things must have been
serious, if the description given by Sir Griffith Evans and Sir
Charles Paul be a correct one. In that year Lord Lytton's Press
Act (IX and XVI of 1878) was introduced to meet the evil, but
it was repealed in less than four years, during the regime of
his successor. As to the wisdom of this policy Sir Griffith Evans
expressed no opinion. He merely said : — " The Vernacular
Press Act was introduced to check license while leaving liberty.
It worked well and without hardship, but was repealed in 1882.
Since then the mischief has spread rapidly."
The Lieutenant-Governor, Sir Alexander Mackenzie, was
more explicit when he said : — ' ' Ever since the repeal of the
Vernacular Press Act, the Native Press has been year by year
growing more reckless in its mode of writing about the
Government," though he made some notable exceptions.
Speaking in 1898 his opinion was : — ' ' We are now-a-days face
to face with a far more insidious and equally dangerous style
of writing and speaking."
It is clear then that the Government, as the Law Member
had stated at the outset, were presented with two alternatives —
the one, to restore the Press Act of 1878; the other to amend
the law of sedition so as to make it more effective.
The former course was obviously repugnant. The Law Mem-
ber openly avowed his reluctance to adopt it. He said: — " We
Lave been urged both from official and private sources to re-enact
70
THE LAW OF SEDITION.
the Press law. But we are entirely opposed to that course.
We do not want a Press in leading strings that can be made to
dance to any tune that its censors may think fit to call. We want
simply a free Press that \\ill not transgress the law ol the land.
We are aiming ai; sedition and offences akin to it, and not at the
Press."
In adopting the other course, how was the law to be made
more effective ? Obviously, by expressing it in plainer language
so that it could not be misunderstood. If it was to be interpreted
as the defence desired in the Bamjohasi and Tilak cases, it was
quite clear that it would never reach a large class of seditious
writing, referred to by the Lieutenant-Governor of Bengal, which
fell short of counselling open resistance, but nevertheless worked
an infinite amount of mischief. Three High Courts had been
opposed to that view, and held it to be erroneous. But neverthe-
less it was thought desirable that the law as codified should be
plainly in accord with judicial opinion, and free from the liability
of misconstruction, and this was accordingly done.
In conclusion His Excellency Lord Elgin, the President,
spoke as follows : — " All that we, the Government, can say is
that we desire the powers necessary to put down sedition. We
ask for nothing more, but we can be satisfied with nothing less.
We do not desire to have a law which bears oppressively on one
particular section of the community. Only partial justice is
done to us when it is said that we have abstained from proposing
an enactment aimed at the Vernacular Press, because as a matter
of fact our legislation is not a Press Act at all. It lays down cer-
tain rules of conduct, by observing which any member of the com-
munity can keep within the law, rules which are applicable to all
and show favour to none.''
The Bill amending section 124A of the Penal Code was
then passed as Act IV of 1898.
CHAPTER VIII.
WHAT IS SEDITION.
The new provision introduced into the Indian Penal Code
by Act IV of 1898, in place of the former one was as follows : —
"124A. Whoever by words, either spoken or written,
„ ... or by signs, or by visible representation, or
otherwise, brings or ; attempts to bring into
hatred or contempt, or excites or ^ attempts to excite disafiec- ^ ^
tion towards Her Majesty or the Government established by
law in British India, shall be punished with transportation for
life or any shorter term, to which fine may be added, or with
imprisonment which may extend to three years, to which fine
may be added, or with fine.
Explanation 1. — The expression 'disaffection' includes
disloyalty and all feelings of enmity.
Explanation 2. — Comments expressing disapprobation of
the measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting
to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Explanation 3. — Comments expressing disapprobation of
the administrative or other action of the Government without
exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section."
By the General Clauses Act (X of 1897) the term ' Her
Majesty' means ' Her Majesty and Her Majesty's successors.*
In comparing this provision with the previous one, for
which it was substituted, it has to be borne in mind that it
does not alter the law of sedition in any respect, but merely re-
states it, as judicially interpreted in the four cases already dis-
cussed, in somewhat plainer language.
The introduction of the expression ' bring into hatred or
contempt' is traceable to Sir C Petheram's charge in the Ban-
gohasi trial (see Ch. iv), while he himself had imported it from
the English law. The introduction of the term ' disloyalty ' is
72 THE LAW OF SEDITION.
traceable to Justice Strachey's charge in Tilak's case (see Ch.v),
and to the Full Bench decisions in Bombay and Allahabad
(see Ch. vi) which followed it. The re-casting of the Explanation
is the result of the views expressed in the last three cases.
Mr. Mayne in his " Criminal Law of India" aptly summaris-
es these changes as follows : — ' ' The amended section was passed
with reference to all these decisions, and seems to have been
framed with a view to maintain the construction which had
been put on the earlier section, by introducing words in accord-
ance with that construction, and excluding all ambiguous phrases.
The changes in the wording of the principal section and expla-
nation 1 make clear what was meant by disaffection. Explana-
tions 2 and 3 make equally clear what is the subject matter
against which political disapprobation may be aroused, and
what are the limitations within which such disapprobation must
be confined. The highly metaphysical description, of a dis-
approbation which is consistent with a disposition to support
the Government in doing the things you disapprove, is wisely
left out."
Sedition, briefly, is the offence of exciting, or attempting to
excite, disaffection.
It will be observed that the Legislature has refrained from
defining the term disaffection. This was advisedly done. It
had been judicially interpreted frequently, and there was no
occasion to fetter the discretion of the Courts by defining it.
Sir James Stephen hadin like manner refused to define it in 1870.
It was difficult to define, but impossible to mistake it, he said.
' And so the Courts of Equity would not define ' fraud,' lest
fraud were committed outside the definition.'
Disaffection, however, when analysed is a state of mind or
psychological disposition with well-defined characteristics. It
is in fact the mental condition of being disaffected. To be
disaffected is to be adversely affected towards, or turned against
any one, e.g., the Government.
Disaffection is clearly not the converse of affection. This
is obvious, for affection is not demanded by the Sovereign of
his subjects, either for himself or his government, nor is the want
of it reprehensible or punishable. Loyalty, not affection, is
what is looked for. It might be safer, then, to eliminate the
WHAT IS SEDITION. 73
■word ' affection ' altogether from this connection, seeing that it
has given rise to confusion in the past, notably in Tilak' s case.
Disaffection is a more comprehensive term than disloyalty,
and is expressly stated by the section to include it. Disloyalty
implies disaffection towards the Sovereign, and is limited to
that meaning, at least in its ordinary sense, in which it is used
in this section. It could not well be applied to the case of the
Government, whereas the wider term is intended to cover the
•cases of both.
If these conclusions be correct, it becomes at once possible
to define the term ' sedition. ' The offence of sedition, which
consists of the act of exciting, or the attempt to excite, dis-
affection in others, may be said to be equivalent to making
or trying to make others disaffected or adversely disposed
towards the Sovereign or his government ; or, in other words,
turning the people against their rulers. This is an offence
against the State, and what the law prohibits, under a penalty.
But, it will be observed, the section expressly mentions
certain specific forms of sedition, viz., ' bringing or attempting to
bring the Sovereign or his government into hatred or contempt.'
These are only some of the numerous ways of exciting disaffec-
tion, which it was not absolutely essential to specify, inasmuch
as they are included in the mischief contemplated. This was
in fact admitted by the Law Member at the time the Bill was
before the Council, when he said: — "It makes very little
difference whether the words 'bring into hatred or contempt'
are inserted or not, because if they were not inserted they
would be there impliedly. They are comprised in the term
'disaffection' according to the decision of the Courts ; as Chief
Justice Petheram says : — " It is sufiicient for the purposes of
the section that the words are calculated to excite feelings of
ill-will against the Government and to hold it 'up to the hatred
or contempt of the people.' Therefore those words are already
by implication in the section, but it is necessary to unfold the
meaning and to explain what the section really means.' '
It is clear from this that these words have been inserted,
not inadvertently, but advisedly, as a guide to the construction
of the section. They tend to simplify its meaning by specifying
5ome of the feelings which would constitute disaffection. It
74 THE LAW OF SEDITION.
would be obviously inconvenient, even if it were possible, to
enumerate them all.
Feelings of disaffection have, however, been judicially
considered, and examples have been given. Sir C. Petheram,
C. J., thought they would include "dislike or hatred."
Justice Strachey enumerated ' ' hatred, enmity, dislike, hos-
tility, contempt and every form of ill-will.' ' Sir C. Farran, C J.^
specified "hatred," "political discontent," and " alienation of
allegiance." Justice Parsons mentioned "political alienation or
discontent," and a " disposition not to obey but to resist."
Justice Ranade has included in his comprehensive list
feelings of "aversion," "insubordination," "animosity,"
"hatred," "contempt," "discontent," " alienation." Sir
John Edge, C. J., has given us "hatred, dislike, ill-will,
enmity, hostility," and "disloyalty."
More recently (2 Bom. L. R., 295) Sir L. Jenkins, C. J,,
has named as hostile feelings, "hatred," "contempt,"
"disloyalty," and "enmity." Justice Batty too has
expressed the view (8 Bom. L. R., 437) that though disaffection
may include such feelings, or positive emotions, as enmity,
hatred, hostility and contempt, it is not by any means limited
to these. He adds: — "The ruler must be accepted as a
ruler, and disaffection which is the opposite of that feeling,
is the repudiation of that spirit of acceptance of a particular
Government as ruler."
It is clear from this exhaustive list that the feelings which
constitute disaffection are both manifold and complex.
Moreover, concrete examples may in the future give birth to
fresh ideas, so that the list cannot be regarded as even com-
plete. The study of so complex a subject, therefore, should
not be limited to the four corners of the section. It is from
the interpretation and application of the law as contained in
the section to concrete cases that the most comprehensive
knowledge of its landmarks is to be obtained. An exhaustive
summary of this case-law will be found in previous and subse-
quent chapters.
Next as to the means by which disaffection may be excited.
This may be done in a variety of ways, though the medium
usually employed is either the platform or the Press,
WHAT IS SEDITION. 75
The section specifies four methods, viz.: — "Words spoken,"
"words written," "signs," and "visible representation."
The word "written" has been substituted for the words "in-
tended to be read" in the old section, which before the amend-
ment contained the four identical expressions that appear in
section 499 of the Penal Code, which relates to the offence of
defamation.
It may be doubted whether the word "written" is an
improvement on the expression "intended to be read," because
after all the essence of the offence, as in the case of libel, is
publication. Writing without publication could not possibly
excite disaffection iu others, which is, in fact, the gist of the
offence
If a journalist wrote a seditious article and kept it in his
drawer, it could never excite disaffection so long as it remained
there, though if it afterwards came to be published it might
be different. As to this Mr. Mayne in his " Criminal Law of
India," citing Foster, has said: — "The mere writing of
seditious words which are not intended for publication and
are kept by the author in his own possession, would not be
punishable under the section."
"What is the meaning of publication V said Lord Esher
in the case of Pullman v. Hill (1891, 1 Q. B., p. 527). "The
making known the defamatory matter after it has been written."
Though this was a case of common libel, the principle is the
Sctme in seditious libel. It is the same too with sedition in
India. Without publication the writing of seditious matter
would be no offence, for it could not cause disaffection until it
was communicated to some one. In reading the section,
therefore, it would seem to be necessary to understand the
term 'written' to mean 'written and published,' which is a
legitimate equivalent for the former expression, ' intended to
be read,' — a term which is still preserved in section 499 of the
Penal Code. It is moreover in accord with the law of England
(see Ch. ii).
With regard to ' words spoken ' publicity is implied, and
probably also in the case of 'signs' or 'visible representation.'
For an instance of the first, reference may be made to the cases
of Chidambaram Pillai v. Ein'peror (32 Mad. 3), and LeaJcut
76 THE LAW OF SEDITION.
Hossein v. Emperor (see Ch. xii) ; and also to the English case
of Reg. V. Burns (16 Cox, 355 : see Ch. ii).
For an example of the second reference may be made to the
case of Reg. v. Sullivan (11 Cox, pp. 51-6: see Ch. ii), where
"woodcuts published in the Weeklij iVeit's " were charged as
'seditious libels.' In that case Lord Fitzgerald said: — "A
seditious libel does not necessarily consist of written matter, it
may be evidenced by a woodcut or engraving of any kind."
An example of the last might be a dramatic performance,
such as would come within the purview of Act XIX of 1876,
s. 3 (see Appx.). Reference may also be made to the case of
Monson v. Tussaud (1894, Q. B. 671), which was a case of
■common libel by ' visible representation.' In this case the
scene of the ' ' Adlamont Tragedy ' ' was depicted with the aid
of life-size efl&gies in wax, in a manner altogether unfavourable
to the plaintiff, who had been tried for murder in Scotland and
■discharged.
" Disaffection," said Justice Strachey, " may be excited in
a thousand different ways. A poem, an allegory , a drama, a
philosophical or historical discussion, may be used for the pur-
pose of exciting disaffection just as much as direct attacks upon
the Government. You have to look through the form, and look
to the real object : you have to consider whether the form of a
poem or discussion is genuine, or whether it has been adopted
merely to disguise the real seditious intention of the writer."
This discloses another point of resemblance to the offence of
defamation, viz. : — ^that the seditious imputation may be con-
veyed by innuendo, as was in fact the case in Tilak's newspaper
the Kesari. " Upon occasions of this sort," said Justice Buller,
' ' I have never adopted any other rule than that which has been
frequently repeated by Lord Mansfield to juries, desiring them
to read the paper stated to be a libel as men of common under-
standing, and say whether in their minds it conveys the idea
imputed."
In almost similar terms were the jury charged by Justice
Strachey. " Read the articles," he said, " and ask yourselves,
as men of the world, whether they impress you on the whole
as a mere poem and a historical discussion without disloyal
purpose, or as attacks on the British Government under the
WHAT IS SEDITION. 77
disguise of a poem and a historical discussion. If the object
of a publication is really seditious, it does not matter what
form it takes."
And so too in the case of Queen-Empress v. Vinayeh (2 Bom.
L. K., p. 308) Sir L. Jenkins, C. J., charged the jury: — "It
will be for you to look at these articles and determine what is
their true meaning, what is the innuendo they convey, what is
the covert meaning, if any, they have. Having reached that
point, you must decide in your minds what is the probable or
natural eflect of these words."
The next point to be noted in the section is that it prohibits
alike the act and the attempt to excite disaffection. The reason
for this may be found in the enormous difficulty of proving that
disaffection has actually resulted from the effort to produce it.
This is conceivable in the case of an inflammatory speech
which is followed immediately by a disturbance, or other un-
mistakable signs of disaffection, but in the case of seditious,
matter disseminated through the Press it would be next to im-
possible to trace a connection.
In Tilak's case, it will be remembered, it was alleged bv
the Crown that within a week of the publication of the articles
charged two murders had been committed at Poona. It was a
matter of inference whether the one event was the result of the
other, but it was impossible to produce evidence to connect
the two.
As to this Justice Strachey said : — ' ' You will observe that
the section places on absolutely the same footing the successful
exciting of feelings of disaffection and the unsuccessful at-
tempt to excite them, so that if you find that either of the pri-
soners has tried to excite such feelings in others, you must con-
vict him even if there is nothing to show that he succeeded."
This important feature of the law has also been demon-
strated in the clearest terms by Sir L. Jenkins, C. J., in a
later case^ Queen-Empress v. Luxman (2 Bom. L. R,, p. 296),
where he said : — ' ' It is not suggested that the publications in
question have in fact resulted in the creation of these feelings of
hostility ; what is said is that the ofiending articles evince a
clear attempt to create these feelings. It is no defence to urge
that the accused has failed in his endeavour. If you are.
78 THE LAW OP SEDITION.
satisfied that the attempt was made, the accused cannot
shelter himself behind this fact that those, to whom he may-
have addressed himself, have either been too discreet or too
temperate to act upon the obvious meaning of his teaching."
His lordship then proceeded to define the meaning of the
term 'attempt.' "An attempt," he said, "is an intentional
preparatory action which fails in its object — which so fails
through circumstances independent of the person who seeks
its accomplishment."
This definition was subsequently cited by Justice Batty
(8 Bom. L. R., 439), who expressed precisely the same views.
^'It is not necessary," he said, "in order to bring the case
within this section that it should be shown that the attempt
was successful. Attempt does not imply success. It is merely
trying. AAThoever tries to excite, attempts to excite, etc., is
held to come within the section. Whether the intention has
achieved the result is immaterial." His lordship then quoted
the observations of Justice Cave in Reg. v. Burns (see Ch. Hi).
" A man cannot escape from the uttering of words with intent
to excite people to violence solely because the persons whom he
addressed may be too wise or temperate to be induced to act
with violence."
It is obvious that fewer elements are required for the proof
of an attempt than for the proof of an act. In fact the act of
sedition could only be proved in exceptional cases, as has been
already pointed out. It is otherwise with an attempt, for proof
must largely depend on the character of the language used.
" If a person," said Sir C. Petheram, C. J., "uses either
spoken or written words calculated to create in the minds of the
persons to whom they are addressed a disposition not to obey
the lawful authority of the Government, or to subvert or resist
that authority, if and when occasion should arise, and if he
does so with the intention of creating such a disposition in his
hearers or readers, he will be guilty of the offence of attempting
to excite disaffection within the meaning of the section, though
no disturbance is brought about by his words, or any feeling of
disafiection in fact produced by them. It is sufficient for the
purposes of the section that the words used are calculated to
excite feelings 'of ill-will against the Government, and to hold
WHAT IS SEDITION. 79
it up to tlie hatred and contempt of the people, and that they
were used with the intention to create such feeling."
It will thus be seen that the attempt which is punishable
without regard to the result, is dependent upon two conditions ;
the character of the language employed, and the intention with
which they were used.
Now, it will be observed that the word ' intention ' is
nowhere employed in the section. The omission of the term
was deliberate, and two reasons were given for its omission.
One was that the former section had worked very well for
nearly thirty years without it, and the other, that it was un-
necessary, for the word ' intention ' was after all only a legal
fiction, and a man's intention must always be judged by his
acts.
Reliance was placed on Sir James Stephen's " Digest of the
Criminal Law,'" article 99, which is as follows: — "In deter-
mining whether the intention with which any words were
spoken, any document was published, was or was not seditious,
every person must be deemed to intend the consequences
which would naturally follow from his conduct at the time and
under the circumstances in which he so conducted himself ' '
(see Chs. ii — Hi). Taylor on Evidence was also referred to,
where he says : — ' ' It is again conclusively presumed that every
sane man of the age of discretion contemplates the natural
and probable consequences of his own acts."
The object of the Legislature in so framing the section is
thus apparent. It was not,, as some had supposed, to punish
unintentional acts and attempts, but to leave the Courts to deter-
mine, as they had hitherto done, a person's intention from his
language and conduct. And so the jury were charged in the
Bangobasi case. Sir C. Petheram, C. J., there said: — "You
will bear in mind that the question you have to decide has
reference to the intention ; and in fact, the crime consists of the
intention, for a man might lawfully do the act without the
intention. The evidence of the intent can only be gathered
from the articles."
Justice Strachey, in Tilak's case, addressed the jury in
similar terms. "You will thus see that the whole question is
one of the intention of the accused in publishing these articles.
80 THE LAW OF SEDITION.
Did they intend to excite in the minds of their readers feelinga
of disaffection or enmity to the Government ? Or did they in-
tend merely to excite disapprobation of certain Government
measures ? Or did they intend to excite no feeling adverse
either to the Government or its measures, but only to excite in-
terest in a poem about Shivaji and a historical discussion about
his alleged killing of a Mahommedan General ? Tfcese are the
questions which you have to consider. But you may ask, how-
are we to ascertain whether the intention of the accused was
this, that, or the other 1 There are various ways in which you
must approach the question of intention. You must gather
the intention as best you can from the language of the articles ;
and you may also take into consideration, under certain condi-
tions, the other articles that have been put in evidence. But
the first and most important index of the intention of the writer
or publisher of a newspaper article is the language of the article-
itself."
"What is the intention," the learned Judge continued,
"which the articles themselves convey to your minds? In
considering this, you must first ask yourselves — what would
be the natural and probable effect of reading such articles in
the minds of the readers of the Kesari, to whom they were
addressed 1 If you think that such readers would naturally
and probably be excited to entertain feelings of enmity to the
Govermnent, then you will be justified in presuming that the-
accused intended to excite feelings of enmity or disaffection.
As a matter of common sense, a man is presumed to intend the
natural and ordinary consequences of his acts."
It is the same in England. In the case of Reg. v. Burdett
(4 B. & A., p. 120), Justice Best said: — "With respect to
whether this was a libel, I told the jury that the question whether
it was published with the intention alleged in the information
was peculiarly for their consideration ; but I added that this
intention was to be collected from the paper itself, unless the
import of the paper were explained by the mode of publicationi
or any other circumstances. I added that if it appeared that
the contents of the paper were likely to excite sedition and dis-
affection, the defendant must be presumed to intend that which
his act was likely to produce."
WHAT IS SEDITION. 81
"Every man," said Lord Tenterden, C. J., in Haire v.
Wilson (9 B. & C. 643), "is presumed to intend the natural and
ordinary consequences of his act. If the tendency of the pub-
lication was injurious to the plaintiff, the law will assume that
the defendant, by publishing it, intended to produce the injury
which it was calculated to effect " (see Ch. Hi).
Lord Tenterden' s celebrated dictum was echoed in Sir
L. Jenkins's charge to the jury in the case of Queen-Empress v.
Luxman, already referred to, where he said : — " It is obvious that
you must determine what was the accused's intention. Was it
his intention to call into being hostile feelings ? To decide this
you have to be guided by the rule (perhaps a rough and ready
rule, but one always accepted until it can be shown that there
is no room for its application) that a man must be taken to in-
tend the natural and reasonable consequences of his act, so that
if on reading through these articles the reasonable, and natural,
and probable effect of these articles on the minds of those to
whom they were addressed appears to you to be that feelings of
hatred, contempt or disaffection would be excited towards the
Government, then you will be justified in saying that these articles
were written with that intent, and that these articles therefore
are an attempt to create the feeling against which the law seeks
to provide."
It is clear, then, that ' intention ' is an essential element in
the offence of sedition, though the section does not expressly
say so. On the other hand the prosecution are relieved from
the burden of proving it directly, which in most cases would be
impracticable, for the law will presume the intention, whether
good or bad, from the language and conduct of the' accused.
It will then be for him to show that his words were harmless
and his motives innocent.
"Intention," says Mr. Mayne in his 'Criminal Law of
India,' "for this purpose, is really no more than meaning.
When a man is charged in respebt of anything he has written or
said, the meaning of what he said or wrote must be taken to be
his meaning, and that meaning is what his language would be
understood to mean by the people to whom it is addressed."
"The intention of a speaker, writer, or publisher," said Sir
John Edge, C.J. (20 All., p. 69), "may be inferred from the
13, LS '6
82 THE LAW OF SEDITION.
particular speech, article, or letter, or it may be proved from
that speech, article, or letter considered in conjunction with
what such speaker, writer, or publisher has said, written or
published on other occasions."
In singular contrast to these weighty opinions stands the
solitary dictum of Justice Caspersz and Justice Chitty in the
case of Apurha Krishna Bose v. Etnperor (35 Cal. at p. 153),
where it is laid down : — ' ' The definition of sedition given in
section 124A of the Indian Penal Code contemplates hatred or
contempt or disaffection towards His Majesty or the Government
established by law in British India, and this apart from any
intention of the offender."
Such a view of the law appears to be directly opposed to
the whole current of judicial authorit}^ both in England and in
India
Another important point to be noted is the persons who
are protected by the section, and against whom sedition is pro-
hibited. These are, in the first place, the Sovereign, and
secondly, the Government established by law in British India.
The words, "Her Majesty," are used in the section to denote
the Queen, and " the word ' Queen ' denotes the Sovereign for the
time being of the United Kingdom of Great Biitain and Ireland,"
as defined in the Penal Code (s. 13). " The word 'Government'
denotes the person or persons authorized by law to administer
executive government in any part of British India" (s. 17).
Justice Batty in citing this definition (8 Bom. L. R., p. 438)
observed: — "What is contemplated under the section is the
collective body of men — the Government, defined under the
Penal Code. That does not mean the person or persons for the
time being. It means the person or persons collectively, in
succession, who are authorised to administer government for
the time being. One particular set of persons may be open to
objection, and to assail them and to attack them and excite
hatred against them is not necessarily exciting hatred against
the Government, because they are only individuals, and are
not representatives of that abstract conception which is called
Government. The individual is transitory and may be se-
parately criftcised, but that which is essentially and inseparably
WHAT IS SEDITION. 83
•connected with the idea of the Government established by law
•cannot be attacked without coming within this section."
In other words, Government is the abstract conception of
British rule in India, as represented by the collective body of
persons who are entrusted with its administration. To attack
any individual member of that body in his private capacity
might amount to a common libel, within the meaning of section
499 of the Penal Code ; but to attack the Government itself
through its official representatives, with seditious intent, would
be an offence within the meaning of section 124 A.
Justice Strachey, in Tilak's case, stated his conception
•of the term as follows : — "It means, in my opinion, British rule
and its representatives as such — the existing political system
as distinguished from any particular set of administrators."
This distinction was also pointed out by Sir C. Petheram,
•C. J., in the Banyobasi case, where he said : — " British India is
part of the British Empire, and is governed like other parts
of the Empire by persons to whom the power is delegated for
that purpose. There is a great difference between dealing with
Government in that sense and dealing with any particular ad-
ministration."
These views are much in accord with the older conception
of government evinced in the dicta of Lord Holt and Lord
Ellenborough (see Ch. in).
CHAPTER IX.
CRIMINAL LIABILITY.
The next point to be considered is the persons who may
incur liability under section 12 iA. In other words who can be-
included under the comprehensive term " WTioever." Now
as regards ' words spoken,' it is clear that the speaker himself
is responsible for the language which he uses. But in
the case of 'words written,' or matter disseminated through
the Press, or by ' signs,' or ' visible representation,' a variety of
persons may incur liability. It may be said briefly that all
persons who wittingly take part, whether actively oi passively,
in the dissemination of seditious matter are responsible, in pro-
portion to the part taken by them.
The principles of joint criminal liability are laid down by the-
Indian Penal Code in sections 34 — 37. They may, for convenience,,
be paraphrased thus : — When a criminal act is done by several
persons in furtherance of the common intention of all, or when
an offence is composed of several acts, which are committed,
either singly or jointly, by several persons, each of the persons
who so co-operates, intentionally, in the commission of such
criminal act or offence, is liable individually for the commission
of it, as though he had done it alone. But this, again, is subject
to the limitation that, when criminal knowledge or intention is
an essential element in the offence committed, the persons who
join in the commission of it must be shown to have such
knowledge or intention before they can be held liable.
These are but the principles of the English law relating to>
the joint liability of persons who participate in the commission
of a felony. " If t\vo persons," said Erskine, <T., in R. v. Hurse
(2 M. & Rob., 360), " having jointly prepared counterfeit-coin,
planned the uttering, and went on a joint expedition and
uttered, in concert and by previous arrangement, the different
pieces of coin, then the act of one would be the act of both, though
they might not be proved to be actually together at each
littering" (Russell).
CRIJIINAL LIABILITY. . 85
In the Bmnjohasi case, where the proprietor, the editor,
the manager and the printer were together placed on their trial
in respect of the seditious articles charged (see Ch. iv), Sir C.
Petheram, C. J., was of opinion that, whoever the writer might
be, 'the persons \\\\o used them for the purpose of exciting dis-
affection' were guilty under the section.
In Tilak's case ( see Ch. v) Justice Strachey referring to
these observations said : — ' ' It has been held by the late Chief
Justice of Calcutta, Sir Comer Petheram, that it is not only the
writer of the alleged seditious article, but whoever uses in any
way words or printed matter for the purpose of exciting feelings
of disaffection to the Government that is liable under the section,
whether he is the actual author or not; and I entirely agree with
him."
In this case the two accused were respectively the pro-
prietor, editor and publisher, and the acting manager and printer
of the Kesari. On the question of their individual responsi-
bility for the publication of the articles the learned Judge said : —
' ' The prisoner Tilak is the proprietor and editor of that paper
and he is also the publisher. He has not attempted to dispute
that, but has admitted it. He has also in his statement before
the committing Magistrate, admitted that he was cognisant of
the fact that the paper was despatched to various places, includ-
ing Bombay. It is further in evidence that before any matter
is published in the Kesari, proofs are submitted to him. Upon
the evidence you W'ould be justified in holding that he is the pub-
lisher of this paper, and also the publisher of these particular
articles in the paper."
This evidence in the opinion of the learned Judge was
sufficient to fix the accused with responsibility qua publisher,
but in addition to this he had signed a declaration as such under
Act XXV of 1867 (see Appx.) and the declaration was in evidence.
"Under that Act," the learned Judge continued, "in the
absence of any evidence to the contrary, you will be justified in
Tiolding that the prisoner Tilak was the publisher of every article
and every word in the Kesari. He published it through his
servants, and it must be taken as a fact, until the contrary is
proved, that he authorised them not only to print it, but to give
it out to the world and to distribute it in Poona and various
^6 THE LAW OF SEDITION.
other places, among them being Bombay." Upon these facts
Tilak was found guilty.
Tlie case of the other accused was different. He was the-
head printer in charge of the Arya Bhushan Press at which both
the Kesari and the MnhraUa were printed. He was at the time
the acting manager and printer of the Kesari, but not its regis-
tered printer. It was not his business to correct proofs, but
merely to receive and pass them on to a proof corrector, who in
turn submitted them to Tilak. ' ' That being the state of facts,"'
said his lordship, " how have you to deal with the question of.
his responsibility '( You has'e to deal with it in this way.
As he was the manager and superintendent in bringing out the'
matter — which was ditsinct from having a control over the li-
terary department — as he was printer of it, you may presume that
he was acquainted with what he was printing and distributing.
You have to find whether ho authorised the insertion of these
articles or their distribution. It is a pure question of fact. If
you are not satisfied that the prisoner was cognisant of the parti-
cular articles, or that he directed or authorised the insertion or
distribution of them, then I will advise you to find him not guilty,,
because you must have regard to die section which requires dis-
tinct proof by the Crown against him. You must be satisfied
that for printing or using the words that were published he was
responsible, and that he used those words for the purpose of ex-
citing disaffection. If you come to the conclusion that he knew
nothing about these articles, then it is a question for you to con-
sider whether you can properly say that he used those words
with that purpose in his mind. It is entirely for you to consider
whether you believe his uncontradicted statement that he was
absolutely ignorant of what appeared in those articles." Upon
these facts the jury found the second accused not guilty.
From so lucid an exposition of the [aw it is abundantly clear
that where publication is unquestioned or beyond controversy, the
only question left to be decided is the meaning of the language
employed. On the meaning will depend the intention, and if
the Court, whether judge or jury, comes to the conclusion that
the words used are calculated to excite disaffection, there is an
end of the matter. ¥, on the other hand, publication is denied,
and there has been no declaration, the individual responsibility
CRIMINAL LIABILITY. 87
of each accused will have to be established by distinct evidence,
in the usual manner.
In the Full Bench case of Ramchandra Narayan (see
Ch. vi), otherwise known as the ' Satara case,' the two accused
were respectively the editor and the proprietor of a newspaper
called the Praiod. The defence set up by each is briefly
summarised by Sir C. Farran, C. J., as follows : — " It is not
denied that the first accused Ramchandra Narayan is criminally
responsible for the publication of the libel, if its contents
contrav^ene the provisions of section 124A of the Penal Code ;
but for him it has been contended that the libel does not
transgress the law enacted in that section. The same conten-
tion has been made on behalf of th« accused No. 2 ; but in
his case the defence has also been urged that although he is
the registered printer and publisher of the Pratod newspaper,
he had ceased to take any part in its management long before
the publication of the libel, and that he is not criminally
responsible for its publication, even though seditious matter is
contained in it. ' '
As the article was found to be seditious the conviction of
the first accused was duly afiirmed. "As to the second ac-
cused," his lordship continued, "he is admittedly the proprie-
tor of the Pratod. He is its declared printer and publisher.
Prima facie, therefore, he is responsible for what is published in
it. When the prosecution has proved these facts, the onus is
thrown upon the accused to rebut the inference whch arises
from them. Ramasami v. Lokanada (9 Mad., 387) is, I think,
an authority in favour of this view of the law. I think that its
reasoning is applicable to a prosecution under section 124A.
From his own statement, corroborated as it is by the evidence of
some of the witnesses for the prosecution, I think it is establish-
ed that the accused No. 2 now leaves the general management
of the Pratod to the first accused, but I am not satisfied that he
is not from day to day cognisant of the more important matters
which appear in it. This being so I am not prepared to upset
the conviction in his case. His offence appears, however, to
me to have consisted rather in passively acquiescing in, and neg-
ligently allowing the publication of the libel in question than in
actively directing it."
88 THE LAW OF SEDITION.
The case cited by his lordship was one which came up for
revision before the Chief Justice of Madras and Justice Mutta-
sami Ayyar. The Sessions Judge of Tanjore had set aside a
conviction by a Magistrate for defamation on the ground of want
of proof of publication. " All that is alleged," he said in his
judgment, " is that the accused was technically the publisher
for the purposes of Act XXV of 1867, not that he actually knew of
the publication." In reversing this order. Sir A. Collins, C J.,
said : — ' ' It is no doubt true that in order to sustain a conviction
for defamation, it must be shownthatthere was a publication by the
accused in fact. But the Judge has apparently overlooked
the provisions of section 7 of Act XXV of 1867 " (see Appx.).
His lordship after citing the section proceeded : — ' ' This
Act was passed, like 38 Geo. Ill, c. 78, s. 14, for the purpose
of preventing the mischief arising from printing and publishing
newspapers by persons not known, and it was intended to
facilitate proceedings, civil and criminal, against the persons
concerned in such publications. The intention was to constitute
the declaration into prima facie evidence of publication, and
thereby throAv on the accused the burden of showing that the
actual publisher of the libel was not the person mentioned in
the declaration. The declaration was then prima jacie evidence
of publication by the accused, and if no contrary evidence was
produced, or if the contrary evidence produced by him was not
true, as held by the Magistrate in this case, it became conclusive
so as to sustain the conviction."
A declaration under section 5 may of course be withdrawn
under section 8, by means of a fresh declaration, and the pro-
duction of a copy of the latter would be a complete answer to the
former. But, unless and until it is withdrawn, it would be good
ev^idence of publication, and sufficient to cast on the accused
the burden of proving his want of complicity. It would, more-
over, have to be met by reliable evidence.
As to what would be sufficient to rebut the evidence of a
declaration, his lordship observed : — " It was then urged for the
petitioner that it was not sufficient for the accused to show
that the libel M^as published without his knowledge or privity,
but^^that he must go further and prove that the publication did
CRIMINAL LIABILITY.
89
not also arise from want of due care or caution on his part, and
our attention was called to the provisions of 6 and 7 Vic. c. 96, a. 7.
It was pointed out by Lush, J., in The Queen v. Holhrooh (4
•Q. B. D., 42) that under the Common Law of England the pro-
prietor of a newspaper was criminally responsible for the publica-
tion of a libel in its columns, whether the libel was inserted
with or without his knowledge, that the intention of the
Legislature in passing the Statute 6 and 7 Vic. c. 96, was to
-mitigate the rigour of the Common Law, and to give the pro-
prietor the benefit of the presumption that, when a person
employs another to do a lawful act, he is taken to authorise him
to do it in a lawful and not in an unlawful manner, and that the
Statute declared for that purpose that it was competent to the
proprietor to prove that the libel was published without his au-
thority, consent, or knowledge, and that the publication did not
arise from want of due care or caution on his part. In substance
the Statute modified the grounds on which the proprietor was
criminally liable for a libel published in his paper according to
the Common Law of England. But we cannot hold that the pro-
visions of that Statute are applicable to this country, and we must
determine, whether the accused is, or is not, guilty of defama-
tion with reference to the provisions of the Indian Penal Code.
We consider that it would be a sufficient answer to the charge in
this country if the accused showed that he entrusted in good faith
the temporary management of the newspaper to a competent
person during his absence, and that the libel was published with-
out his authority, knowledge, or consent."
This important decision was followed again by the Bombay
High Court a few years later. In the year 1899 two notable trials
(already referred to) were held before Sir L. Jenkins, C. J., pro-
bably the first to take place after the legislation of 1898, which
are very fully reported in the Bombay Ijaw Reporter (Vol. II
pp. 286 — 322). Both trials arose out of certain seditious articles
V hich appeared in a vernacular newspaper, published in Bombay,
lalled the GurakJii. In the first, Queen-Empress v. Luxman, the
accused was the sub-editor of the paper, and there was direct
evidence to show that he was also the writer of the articles in
c|uestion. Sir L. Jenkins, C. J., in his charge to the jury, thus
describes it: — " The evidence before vou is to the effect that
90 THE LAW OF SEDITION.
this man composed the articles ; that they were written out by
him ; that they were handed over by him for publication ; and
that they were subsequently printed." " If you believe that
evidence," his lordship added, "there is sufficient to justify
you in holding that there Avas a case within the terms of the
section." The prisoner was found guilty.
In the second case, Queen- Empress v. VinayeJc, the accused
was the proprietor, editor, printer, and publisher of the GurakJii.
In dealing with the question of his responsibility for the publica-
tion of the articles charged as seditious, his lordship said : — ' ' It is
not disputed that the accused is the publisher of the paper, and
you have evidence before you to the effect that he is its proprietor
and editor and manager. . His relation, therefore, to the paper
in which the articles appeared is such that he clearly comes within
that rule which makes a man prima facie liable for what appears
in his paper. A publisher is prima facie liable for that which
appears in his paper, and if he seeks to get rid of that liability
the onus lies on him. It is for him to prove such circumstances
as would justify him in asking you not to fasten responsibility
on him. It will be for the accused to convince you on the evi-
dence before the Court, by the probabilities of the case, that
his prima facie liability is displaced. What is necessary for him
to establish at least is this : that the paper was published without
his knowledge, authority, or consent, and without any acquies-
cence or connivance on his part. The case he has asked you to
believe is that at the time the last two articles were published
he was not in Bombay. Mere absence itself is obviously insuffi.-
cient to constitute an answer to the charge. There must be
more than that. Nor is it enough that he should show merely
a want of particular authority. It is not enough for him to say •:
' I never authorised the publication of this particular article.'
And in this connection I will read what has been said by a very
eminent Judge." His lordship then cited the observations of Sir
Alexander Cockburn, C. J., in Req- v. Holhrooh.{i Q. B. D., 42>
as follows : — "'Where a general authority is given to, aa
editor to publish libellous matter at liis discretion it will avail a
proprietor nothing to show that he had not authorised the
publication of the libel complained of.' " The prisoner was
found guilty.
CRIMINAL LIABILITY. 91'
In the case of Emperor v. Bhashar (8 Bom. L. R., 421),
the accused was proprietor, editor, and publisher of a Mara-
thi newspaper called the Bhala, in which there had appeared
the celebrated article entitled ' A Durbar in Hell.' He had
made a declaration as publisher of the paper under Act XXV
of 1867, s. 5. He admitted publication, but denied the author-
ship of the article in question. He also admitted responsibility
but pleaded ignorance of the character of the article, and the ab-
sence of any evil intention. On the question of responsibility
Justice Batty charged the jury as follows : — " It is not sufficient
for a person who has published matter calculated to excite hatred,
contempt, or disaffection, to say : ' This is not my work,' because,
the adoption of the means, the publishing thereof, was in itself
his work ; therefore it is that the printer or publisher of an article
which is open to these objections is always to be held liable. In
the Madras case which has been cited to you it was held that a
declaration under s. .5 of Act XXV of 1867 (an Act requiring all
printers and publishers to register their names), in the absence of
proof to the contrary, is proof of publication by the person making
the declaration, unless he can prove that the matter was published
in his absence and without his knowledge, and that he had in
good faith entrusted the temporary management of his business
to a competent^ person. That is to say for every thing that
appears in his paper the editor, printer, or publisher is as responsi-
ble as if he had written the article himself."
"No doubt," his lordship added, "circumstances may con-
siderably mitigate the penalty which has to be imposed. But his
liability to conviction under the section is not affected by the cir-
cumstance that the publisher who used the words did not originate
them." He then cited the dictum of Sir C. Petheram, C. J.,
quoted above : "" ^Vhoever the composer might be, whoever wrote
or cau.sed it to be written, the person who used it for purposes of
exciting disaffection is guilty of an offence under section 124A."
The same principles bad been laid down by Sir L. Jenkins, C. J., in
the case of Queen -Empress v. Vinaych, and his lordship proceeded
to cite also the passage quoted above to the jury. In conclu-
sion Justice Batty observed :— " The same rule of law obtains in
England, and I think you will recognise how very necessary it
is to make responsible the editor or publisher who gives forth to
"92 THE LAW OF SEDITION.
the whole world articles which are of a dangerous character."
The jury found the prisoner guilty, and he was sentenced
to six months' imprisonment and a fine of one thousand
rupees.
It is difficult to reconcile these weighty observations on the
efficacy of Act XXV of 1867 with the views expressed in the case
oi Apurba Krislmo Base V. Emperor (35 Cal. at p. 155), as to the
inefficacy of the same measure. The learned Judges v»'ho
decided that case, in dismissing the petition of the printer of
the Bande Matarnm. said: — "Forty years ago it was never
anticipated that a mere printer would be punished, with the aid
of the Act, for the publication of seditious matter," without
regard to the fact apparently that the mere v-riter of seditious
matter could not be punished at all, unless and until it was
published.
" It is unfortunate," the learned Judges continued, "that
the person or persons really responsible for these sedition ■;
utterances remain undetected." It is difficult to see why they
should remain undetected — either with or without the aid f>f
the Act — having regard to the large number of convictions of
really responsible persons which are reported to have taken
place between the years 1897 and 1906. Strangely enough
the only case of acquittal reported during that period wa-i
that of the unregistered acting printer of the Kesari in Tilak's
case. The learned Judges conclude in the full assurance that
the Act will be amended so as to reach the more guilty
persons, but as no suggestion is offered as to how this can be
done, the problem remains unsolved. It is by no means easy
to conjecture how the benefits of registration under the Act
could be extended to the casual contributor and the unknown
journalist, however guilty they might be.
Act XXV of 1867, however, seems to have received mor .
considerate treatment the following year, in the same High Cour. .
at the hands of Justice Rampini, A. C. J. This was in the
case of Emperor v. Phanendra Nath Mitter (35 Cal., 945).
■commonly known as the Jugantar case. The accused was the
printer of the newspaper known by that name. In this case
the accused had withdrawn his declaration, under section 8,
CRIMINAL LIABILITY. 95
but the seditious articles had appeared in the paper a few day&
before the revocation. The presumption raised by section 7 was
duly applied by the learned Judge, in the manner prescribed by
the Madras High Court, in the case of Ramasami v. Lokanada.
His lordship is reported to have approved of the ruling in
that case, but to have dissented from the observations in Tilak's
case. The point of difference is not stated, so that it is difficult
to say what it is — the more so as the two rulings appear to be in
complete harmony. With respect to Tilak's case the learned
Judge is reported to have charged the jury, as follows : — " It
is an old case, as it is a case under the Indian Penal Code, before
it was altered by the legislation of 1897 :" meaning, no doubt,
the legislation of 1898, but apparently overlooking the fact that
the law had not been really altered, not at least, so as to affect
the liability of printers.
Then in the next sentence, his lordship is reported to have-
said : — " This is a case in w'hich the provisions of section 7 of
Act XXV of 1867 have not been considered." With due
respect to the learned Judge, it might be safe to assert that the
reverse of that proposition would have been nearer the facts,
for it will be found on reference that the provisions of section
7 of that Act were not only considered, but cited by Justice
Strachey, who after commenting on them, explained their effect
to the jury in the plainest terms (see ante).
There is, however, one point in his lordship's charge that
may be referred to with advantage in this connection. It is
contained in the suggestion that the knowledge of three previous
convictions against former printers of the same paper for sedition,,
as well as a previous prosecution against himself, were sufficient
to destroy the hona fides of his plea of absence, and to raise the
inference that he went away for the purpose of shirking liability,
and not in good faith. The jury found the prisoner guilty.
The same principles have been followed in two unreported
decisions of the Calcutta High Court (see C/i. xiv). These were
the appeals of Surendra Prasad Lahiri v. Emferor (No. 497 of
1910) and Joy Chandra Hirhar v. Emperor (No. 509 of 1910). The
former was the declared printer and publisher, and the latter the
proprietor and editor of a vernacular newspaper called the
94 THE LAW OF SEDITION.
Rungpur Bartabaha. The printer relied merely on a plea of
absence, while the editor denied all knowledge or responsibility,
and pleaded further that the articles charged were not seditious.
Both convictions were affirmed.
The same views were adopted by the Chief Court of the
Punjab in 1904 in the case of Bam Nath (6 P. L. R.,259).
It has already been seen that the mere writing of seditious
matter without publication would be no ofl'ence. Just as a
man might think what he liked, so long as he did not preach sedi-
tion to others, so a man might write what he liked, so long as he
did not communicate whac he wrote to any one. The offence
clearly lies in communicating seditious thoughts to other
people, by any means, for the purpose of creating disaffection.
Now this would seem to hold good even if the seditious writing
came to be published inadvertently, but through no fault of the
WTiter. The illustration lies in the somewhat extreme case put
by Lord Esher in Pullman v. Hill (1891, 1 Q. B., 527) where he
said : — ' ' What is the meaning of pviblication ? The making
known the defamatory matter after it has been written. If the
writer of a letter locks it up in his own desk, and a thief comes and
breaks open the desk, and takes away the libel and makes its
contents known I should say there would not be a publication."
In such a case if mischief ensued from publication the writer
could hardly be made responsible, for it would not be
his act.
But, on the other hand, it is difficult to conceive a journalist
writing a seditious article except for the purpose of publica-
tion, and, in the event of its taking place through inadver-
tence or by mistake, the onus woidd be on him to prove the
fact. Section 114 of the Evidence Act provides that — " The
Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct, and public and private
business, in relation to the facts of the particular case:" e.g.,
" that the common course of business has been followed in parti-
cular cases." There would certainly be a strong presumption in
favour of a journalist intending to publish what he had written,
and of authorising its publication if it were published.
CRIMINAL LIABILITY. 9i)
"If a person," says Mr. Mayne, in his 'Criminal Law of
"India,' " writes seditious words, intending them to be published,
and they are afterwards published, though in a different way,
and to a greater extent than he had contemplated, this completes
his offence. It is also to be remembered that the act of publica-
tion is complete as soon as the contents of the writing have been
communicated to any person.' ' From this it would appear that
if an intention to publish can be established, it makes no difference
whether the original object is attained or not, so long as it is com-
municated in some way, so as to be likely to excite disaffection.
It is important to consider also, in this connection, the
liability of a somewhat different class of j)ersons, who may, wit-
tingly or unwittingly, become the medium of publication of sediti-
ous matter. These are the booksellers and newsvendors through
whose hands dissemination is usualh'^ effected.
" Every sale, or delivery of a written or printed copy of a
libel is a fresh publication " (Odgers). The law as to this was
very clearly laid down in the case of R. v. Almon (5 Burr., 2686).
Almon, who was a bookseller, had been convicted of selling u
publication known as ' Junius's Letters,' and moved for a new
trial on the ground of the want of any proof against him of
criminal intention or knowledge as to the sale of the books. On
the motion it was alleged — ' ' That he was not at home when
they were sent to his shop. That the whole number sent to his
shop was 300. That about 67 of them had been sold there, by a
boy in the shop, but without Almon's own knowledge, privity, or
approbation. That as soon as he discovered it, he stopped the
gale." These facts, however, do not appear to have been
established by Almon at the trial. One of the jurymen pro-
pounded the following question to the Judge : — " Whether the
bare proof of the sale in Almon's shop, without any proof of pri-
vity, knowledge, consent, approbation, or malus animus, in
Alnion himself, was sufficient in law to convict him crimiually
of publishing a libel ?" Lord Mansfield replied " that this
was conclusive evidence." At the hearing of the motion his
lordship explained this in these terms :—" Mr. Mackworth's
doubt seemed to be ' whether the evidence was sufficient to
convict the defendant, in case he believed it to be true.' And
96 THE LAW OP SEDITION.
in this sense I answered it. Pritnd jacie 'tis good, and remains-
so till answered. If it is believed, and remains unanswered, it
becomes conclusive."
His lordship then proceeded to expound the law further, as^
follows : — " The buying the pamphlet in the public open shop of a
known professed bookseller and publisher of pamphlets, of a
person acting in the shop, prima facie is evidence of a publication
by the master himself, but that is liable to be contradicted, when
the fact will bear it, by contrary evidence tending to exculpate the
master, and to show that he was not privy nor assenting to it,
nor encouraging it."
In this view of the law the Judges iinanimously concurred.
Justice Aston, in particular, laid down the same maxim, as
being fully and clearly established, in these terms : ' ' This frimd
facie evidence (if believed), is binding till contrary evidence be
produced. Being bought in a bookseller's shop, of a person
acting in it as his servant, is such ■prima facie evidence of its
being published by the bookseller himself : he has the profits of
the shop, and is answerable for the consequences. If he had a
sufficient excuse he might have shown and proved it."
These principles were formulated by Statute seventy year*
later. Lord Campbell's Act (6 & 7 Vic, c. 96, s. 7) provides
that whenever, upon the trial of an indictment for a libel, " evi-
dence shall have been given which shall establish a presumptive
case of publication against the defendant by the act' of any other
X^erson by his authority, it shall be competent to such defendant
to prove that such publication was made without his authority,
consent or knowledge, and that the said publication did not arise
from want of due care or caution on his part."
And so, in a more recent case, where the defendants were
newsvendors, and sold in the ordinary course of business copies
of a newspaper which contained a libel, and there was evidence
to show that they were ignorant of the character of the paper
and of the existence of the libel, and that there was no negligence
or want of care on their part, it was held that they ' ' had not
published the libel, but had only innocently disseminated it"
(Emniem v. Pottle (C. A.) 16 Q. B. D., 354).
And so also where the defendants were the Trustees of the
British Museum \\huse duty it was to receive copies of all
CRIMINAL LIABILITY. 97
publications for the Library, and to supply ^them to readers
through their librarians, it was held that they could not be made
liable if such books happened to contain libels. ' ' It would be
different,' ' said Baxon Pollock, ' ' if the books were sold across the
counter, or delivered to be sold in the street. It was laid down,
on the ground of social policy, that if a man chose to sell books or
papers he must take the consequences of his acts, if he knew
that they contained libellous matter:" {Martiyi v. Trustees of
the British Museum, 10 Times L. R., 338).
The Madras High Court, it is true, have held, in the case of
Ramasami v. Lohanada (9 jVTad., 387) already referred to above,
that Lord Campbell's Act has no application to India, but they
have themselves laid down very similar principles to be observed
in cases of innocent publication, and these may be adopted
instead (see ante).
D, LS
CHAPTER X.
WHAT IS NOT SEDITION.
Thk latter part of section 124A, which is comprised in the
second and third Explanations, states in express terms what is
to be excluded from the purview of the first part.
The substance of these two Explanations may be conveni-
ently formulated thus : —
' Comments expressing disapprobation of —
{a) the measures of the Grovernment, with a view to obtain
their alteration by lawful* means, or
(6) the administrative or other action of the Govern-
ment,
without exciting or attempting to excite harted, contempt or
disafEection, do not constitute an offence under this section.'
The object of the provision contained in clause (6), as has
been already pointed out, was to include comments upou past
action of the Government which was irrevocable. The former
explanation which, as will be remembered, had given rise to
misconceptions in more than one trial, was recast in 1898. In
its present form its meaning is clearer, though its purpose is
still the same.
In commenting on this branch of the section, inTilak's case.
Justice Strachey said : — " You Viirobserve that the section con-
sists of two parts : first, a general clause, and then an explanation.
The object of the explanation is a negative one, to show that
certain acts which might otherwise be regarded as exciting or
attempting bo excite disaffection are not to be so regarded."
" The object of the explanation," he continued, "is to
protect honest journalism and bond fide criticisrns of public measures
and institutions, with a view to their improvement, and to the
remedying of grievances and abuses ; and to distinguish this
from attempts, whether open or disguised, to make the people
hate their rulers. So long as a journalist observes this distinc-
tion, he has nothing to fear."
WHAT IS NOT SEDITION. 99
" It seems to me," he added, "that this view of the law
secures all the liberty which any reasonable man can desire,
and that to allow more would be culpable weakness, and fatal
to the interests not only of the Government but of the people."
An analysis of this branch of the section reveals the fact
that it is composed of two essential elements. The first is that
the matter in question must in fact consist of comments, and,
secondly, that the disapprobation which they may express shall
be within certain limits.
This again has been expounded by Justice Strachey in
the clearest terms as follows : — " The most important point
for you to bear in mind is that the thing protected by
the explanation is ' the making of comments on the measures
of the Government ' with a certain intention. This shows
that the explanation has a strictly defined and limited
scope. Observe that it has no application whatever unless
you can come to the conclusion that the writings in ques-
tion can fairly and reasonably be construed as ' the making
■of comments on the measures of Government.' It does not
apply to any sort of writing except that. It does not apply to
any writing which consists not merely of comments upon
Government measures, but of attacks upon the Government
itself. It would apply to any criticisms of legislative enactments,
such as the Epidemic Diseases Act, or any particular tax, or
of administrati\'e measures, such as the steps taken by the
Government for the suppression of plague or famine. But
if you come to the conclusion that these writings are an attack
not merely upon such measures as these, but upon the Govern-
ment itself, its existence, its essential characteristics, its motives
or its feelings towards the people, then you must put aside the
explanation altogether, and apply the first part of the section."
It will thus be seen, in the first place, that the protection
afforded by the second branch of the section is only extended
to what may be legitimately called " comments " on the action
of the Government. If the matter in question is really only an
attack on the Government itself, under the guise of criticism,
the saving clause would have no application at all.
Then, in the second place, the disapprobation expressed in
the comments, if in fact they be such, is strictly circumscribed.
100 THE LAW OF SEDITION.
It is subject to the restiictions imposed by the first part of the
section, and if it violates these it is sedition. It must not excite,.
or tend to excite, disaffection.
The distinction between exciting "disapprobation" and
exciting "disaffection" has been also very clearly demonstrated
by Justice Strachey, as follows : — ' ' This distinction is the
essence of the section. It shows clearly what a public speaker
or writer may do, and what he may not do. A man may
criticise or comment upon any measure or act of the Govern-
ment, whether legislative or executive and freely express his
opinion upon it. He may express the strongest condem-
nation of such measures and he may do so severely, and even
unreasonably, perversely and unfairly. So long as he confines
himself to that he will be protected by the explanation. But
if he goes beyond that, and, whether in the course of comments
upon measures or not, holds up the Government itself to the
hatred or contempt of his readers — as, for instance by attri-
buting to it every sort of evil misfortune suffered by the people,
or dwelling adversely on its foreign origin and character, or
imputing to it base motives, or accusing it of hostility or .
indifference to the welfare of the people — then he is guilty under
the section, and the explanation will not save him."
In this connection the observations of Sir L. Jenkins, C. J.^
at the trial of Vinayek (2 Bom. L. R., 307) must be referred to.
His Lordship's remarks have reference to the explanation after
it was recast in 1898, and were as follows : — "It has always been
the policy, and is the policy of the law to allow free criticism,
and almost, one may say, unrestrained criticism and comment
on officers of State, on Judges, on measures of Government, and
on Government itself, but it is subject to this qualification that
this freedom must not be abused, so as to become a source of
danger to the State. It is only when a man oversteps these
very wide bounds and limits that he brings himself within the
reach of the law. With a view to securing this freedom and
liberty the second and third explanations have been framed,
from which you will see that measures of administration and
other action of Government are open to an expression of disap.
probation, subject only to this that if the expression of dis-
approbation evidences an attempt to excite feelings hostile to
WHAT IS NOT SEDITION. 101
Government, of the kind indicated in the section, then its author
is liable to be punished."
Similar views were expressed by Justice Batty, a few years
later, in the case of Emperor v. Bhaskar (8 Bom. L. R., 441).
*' Changes in policy," he said, "and changes in measures
are liable to criticism, and to criticise and urge objections to
them is the special right of a free Press in a free country. The
British nation has always specially boasted that it had a free
Press, but the freedom of that Press is conditional upon one
thing ; every liberty is given to all men to express their opinions
so long as they do not misuse or abuse that power to the injury
of others, including among injuries to others, injury to the State.
It is onl}'' on that condition that it is possible to have a free
Press."
It is the same in England (see Chs. ii — in).
It may be said, then, that the second branch of section 124 A
which is comprised in the second and third explanations
prescribes the limits of free criticism by speech or pen, in terms
which are no longer ambiguous. The restrictions imposed have,
moreover, been so clearly explained by judicial authority, that
misapprehension is hardly possible.
In this connection, however, it is necessary to bear in mind
a fact which has been well established since the days of Lord
Mansfield. It is that on a charge of seditious libel, the plea
can never be taken either that the libel was true or for the pub-
lic benefit. In this respect it differs from a common libel, and
it is well that it should be so, in the interests of the State.
This proposition has been stated by Sir L. Jenkins, C. J.,
in Luxman's case (2 Bom. L. R., 298) as follows: — "Even if
there were a grievance, and even if it could be said that the articles
are based on that which is true, still if these articles are such
as to create feelings of hatred, contempt, or disaffection the
truth would be no answer to the charge, though it might in-
fluence the measure of punishment which it would be proper
to inflict. The truth of a grievance constitutes no excuse for
seditious or criminal publications or writings which it calls into
existence."
And so also Sir John Edge, C J., in delivering the opinion of
the Full Bench in the case of Amba Prasad (see Ch. vii) said : —
102 THE LAW OF SEDITION.
"'W'hen it is ascertained that the intention of the speaker,
writer, or publisher, was to excite feelings of disaffection to
the Government established by law in British India, it is im-
material whether or not the words spoken, written, or pviblished
could have the effect of exciting such feelings of disaffection, and
it is immaterial whether the words were true or were false."
There are, moreover, certain well-established rules, pres-
cribed by judicial authority, which are always observed, for
the construction of seditious matter, and in particular that
which professes to be merely critical.
The first is a rule which was laid down in Sullivan's case in
.1868 by Lord Fitzgerald (see Ch. ii). It is that in forming an
opinion as to the character of any matter charged as seditious,
it must be looked at as a whole, freely and fairly, without giving
undtje weight to isolated passages.
His lordship charged the jury in these terms : — " In dealing
with the articles you should not pause upon an objectionable
sentence here, or a strong word there. It is not mere strong
language, or tall language, or turgid language that should in-
fluence you. You should, I repeat, deal with the articles in a
free, fair, and liberal spirit.'.'
Sir C. Petheram, C. J., in the Bangohasi case, referred in
his charge to these weighty observations as follows : — "It will
be for you to come to a decision on the tone of these articles.
You must not look to single sentences or isolated expressions,
but take the articles as a whole, and give them a full, free, and
generous consideration, as Lord Fitzgerald has said ; and even
allowing the accused the benefit of a doubt, you will have to say
whether the articles are fair comments and merely expressions
of disapprobation, or whether they disclose an attempt to excite
enmity against the Government."
Justice Strachey, in Tilak's case, charged the jury in pre-
cisely similar terms when he said : — " In judging of the intention
of the writer or publisher, you must look at the articles as a whole
giving due weight to every part. It would not be fair to judge
of the intention by isolated passages or casual expressions, with-
out reference to the context. You must consider each passage
in connection with the others, and with the general drift of the
whole. A journalist is not expected to write with the accuracy
WHAT IS NOT SEDITION. 103
and precision of a lawyer or a man of science ; he may do him-
self injustice by hasty expressions out of keeping with the
general character and tendency of the articles. It is this
general character and tendency that you must judge the inten-
tion by, looking at every passage so far as it throws light upon
this."'
Sir L. Jenkins, C. J., in Luxman's case (2 Bom. L. R., 298)
enunciated the same rule in these terms : — "" These three articles,
or translations of them, have been placed before you, and what
I shall ask you to do is to read them through yourselves and
consider them carefully in order to determine what is their true
construction, what is their real tendency, and what is their
natural effect upon the minds of those into whose hands they
come. I must warn you that you must not fasten upon a single
strong phrase or a single strong word, but you must consider the
articles as a whole — each article as a whole and all three together
— and, reading them in a liberal spirit, it will be for you to say
whether you think there is any doubt that they were in fact an
attempt to create feelings of hatred, contempt, or disaffection
against the Government." •
The meaning of this rule, appears to be, that, in construing
an article or a speech, due weight must be given to every part,
and undue weight to none. But this does not mean that par-
ticular passages, probably couched in stronger language than the
rest, are therefore to be disregarded. Experience shows that
particular passages frequently give the whole article or speech
its character. It often happens, in cases where the meaning
is studiously veiled, that a particular passage wiJl give the
necessary clue to a proper construction of language which would
be otherwise unintelligible. An illustration of this may be
found in numerous articles which have appeared in the reported
cases, and notably in an unreported case recently decided in the
Calcutta High Court (see Chs. xiv — xv), and known as the Rung-
puT Bartahaha case (App. No. 509 of 1910).
On the other] hand, it is obvious that the accused must
not be prejudiced by the improper use of such passages. " It
would not be fair," as Justice Strachey says, " to judge of
the intention by isolated passages or casuak expressions without
reference to the context." But that is quite another thing.
104 THE LAW OF SEDITION.
Another important rule, and one which is invariably put in
practice in trials for sedition, authorises the use of collateral
matter, which is not within the charge, for the purpose of show-
ing the animus of the accused, and of throwing light on the
meaning of the language employed by him.
Section 14 of the Evidence Act provides that ' ' Facts show-
ing the existence of any state of mind — such as intention, know-
ledge, good faith, negligence, rashness, ill-will or good- will to-
wards any particular person" — are relevant and may be proved ;
while illustration (e) of the same says that when "^ is accused
of defaming B by publishing an imputation intending to harm
the reputation of B, the fact of previous publications by A res-
pecting B, showing ill-will on the part of A towards B, is rele-
vant, as proving A's intention to harm B's reputation by the
particular publication in question." And so also it is open to
the defence to prove the contrary for the purpose of showing
the absence of any such intention.
In the Bangohasi trial articles were put in on both sides
for these purposes. In drawing the attention of the jury to
this Sir C. Petheram, C. J., said : — ' ' The charges are based on
the five articles which are the subject of the indictment. Other
articles have been quite properly put in during the trial, but
no charges are laid in connection with the latter. They were
put in, some by the prosecution, and some by the defence, to
prove that their view of the intent of the articles charged was
indicated in the others."
In like manner, at the trial of Tilak, extracts were used on
both sides, not only from the Kesari, but also from the Mahratta
of which he was likewise the proprietor. Not merely articles,
but correspondence was thus admitted in evidence. Justice
Strachey as to this observed: — "I do not think that I can
exclude the evidence. As in cases of defamation, the proprietor
and publisher would be liable for articles or letters published
by him, though purporting to be signed by outsiders, and
therefore I think that such contributions are admissible to
show his intention and animus, as well as articles purporting
to represent the views of the paper. It is, of course, open to
the accused to put in any contributions of a different tendency
VVilAT IS NOT SEDITION. 105
which, he may have published, and so to show that those put
in by the Crown do not express his intention."
In the Allahabad case of Amha Prasad (see Ch. vi) Sir John
Edge, C. J., in delivering the opinion of the Full Bench said : —
" The intention of a speaker, writer, or publisher, may be
inferred from the particular speech, article, or letter, or it may
be proved from that speech, article, or letter considered in
conjunction with what such speaker, writer, or publisher has
said, written, or published on another or other occasions."
The same rule applies when the collateral matter sought
to be used is contained in speeches, or consists of ' words
spoken' and not 'written.'
In the case of Chidambaram Pillai v. Emperor (32 Mad.,
p. 14, see Ch. xii) where the objection was taken by the
defence that such matter was irrelevant. Sir A. White, C. J.,
and Justice Miller said : — ' ' We are of opinion that where
there is a series of speeches or lectures on one topic, all
delivered within a short period of time, one may be considered
for the purpose of throwing light on the real meaning and
intent of another, and on the state of mind of the speaker
with reference to the object matter of the other speeches.
This principle is recognised in illustration (e) to section 14 of
the Indian Evidence Act, and has been acted on in cases of
prosecutions for sedition in all the other High Courts in India."
Their lordships cited the cases of the Bangohasi, Tilak, and
the Jugantar, already referred to.
It may be noted that the method adopted of proving such
speeches by means of the notes of Police Officers who were
examined as witnesses in the case was also approved by the
Court. It was the same in the case of Leakat Hossein Khan
V. Emperor (App. No. 214 of 1908), which however is un-
reported (see Ch. xii). In this case the Calcutta High Court
made use of similar evidence for the purpose of throwing
light on the meaning of a printed leaflet or circular. The
appellant who was " a well-known speech maker on Swadeshi
and similar topics in Calcutta," visited Barisal in Eastern
Bengal, with the avowed object of circulating a printed leaflet
among the Mahomedans of that province, and of expounding
to them the doctrines set forth therein. One of the doctrines
lOG THE LAW OF SEDITION.
which the leaflet purported to teach was that accoiding to
the sacred Koran Mahomedans owed no allegiance to non-
Moslem rulers. At the appeal it was contended for the prisoner
that the "allegiance" referred to was intended to mean
merely a spiritual or religious allegiance, and nothing more.
The answer to that, in the opinion of the Court, was con-
tained in the evidence of his speeches "which were certainly
not concerned only with religious matters, in Calcutta, both
before and after his visit to Barisal," and in which " he refer-
red to that visit apparently as part of the work he was then
engaged on."
In a more recent case, Emperor v. GanesJi Damodar
Saoarkar (34 Bom., 394) the same principle has been applied to
a book of poems, only four, of wliich formed the subject-matter
of a charge of sedition. On appeal the contention was raised,
on behalf of the prisoner that none of the four poems charged
contained anything seditious. Justice Chandavarkar said : —
" On examining the series of poems in the book, exhibit 6,
containing the four poems, it appeared to us that there were
other poems in it besides those four which throw light on the
intent of the writer ; and that, as the whole book had been
allowed in the lower Court to go in as evidence, without any
objection, all the poems in the book could be referred to for
the purpose of determining the intention, character, and object
of the poems selected as the basis of the charges. We
adjourned the hearing for an official translation of the
whole series of poems in the book into English, and also to
enable the appellant's legal advisers to argue the appeal with
reference to the bearing of the whole series on the poems form-
ing the subject-matter of the charges."
This principle was also applied in two other cases in the
Calcutta High Court, viz. : — The cases of the Jugantar (35 Cal,;
945), and the Riingpur Bartahaha (App. No. 509 of 1910, see
Ch. xiv). In the latter case three articles were made the
subject of the charge, whi e six others, taken from the same
paper, were referred to for the purpose of throwing light on
the meaning of the first, and of showing the character of the.
paper and the intention of the writer.
WHAT IS XOT SEDITION.
107
lu cases when the meaniug of the writer is veiled, as it fre-
quently is, under the cloak of religious rhapsody, it is important
to ascertain the general tone of the paper, and to see whether
it is really religious or not. These appear to be the rules for
the admission of collateral matter and the purposes for which
it may be used.
On the other hand the case of Monmohan Ghose (App_
No. 744 of 1910), otherwise known as the " Karmajogin case,'»
affords an instance of the exclusion of such matter from con-
sideration. In this case the appellant who was the printer
and publisher of a newspaper, called the Karmajogin, had been
convicted by the Chief Presidency Magistrate of Calcutta under
section 124A. The article which formed the subject of the
charge, the publication of which was not disputed, purported
to be "an open letter addressed by one Arabindo Ghose to his
countrymen." For the purpose of elucidating the meaning
of certain expressions employed in the letter it was sought, on
behalf of tbe Crown, to refer to other letters or articles which
had previously appeared in the same paper, and were alleged
to form part of a series of contributions on similar topics.
These were excluded by the Court from consideration, on the
ground, apparently, that the identity of the writer of them
had not been established. The reasons are set forth in the
judgment of Justice Holmwood as follows: — "Now in this
case although the prosecution alleged that a series of articles
had been written by one individual, and had those articles pro-
duced by a Police-ofHcer who said that it was his duty to read
them, and if objectionable to forward them to his superiors, no-
evidence was offered who that individual was, nor whether all
the articles were by the same author."
If, however, the rule laid down by Sir C. Petheram and
Justice Strachey (see ante) is to be observed, it would appear
that, where publication is established or not denied, the only
question left to be determined is, whether the matter published
is in the opinion of the Court, whether judge or jury, seditious,
i.e., calculated to excite disaffection, or not, and this without
regard to its authorship. On this principle evidence was
admitted in Tilak's case of collateral matter in the shape of
correspondence. The learned Judge there observed : — " The
108 THK LAW OF SEDITION.
publisher would be liable for articles or letters published by
him, though purporting to be signed by outsiders, and therefore
I think that such contributioas are admissible to show his
intention and animus as well as articles purporting to represent
the views of the paper." And so in the Bangohasi case
(see Ch. ix), where both printer and publisher were on trial,
Sir C. Petheram, C. J., observed that if the articles were seditious
the persons who used them for the purpose of exciting disaffec-
tion were guilty under the section — whoever the writer might
be (see Ch. iv).
In the Karmajogin case, however, the learned Judge went
on to add : — " It was urged by the learned Advocate-General
that these articles were admissible under sec. 15 of the Evi-
dence Act for the purpose of showing that the publication of
the article before us in this case was not accidental, but that
has obviously nothing to do with their admissibility for the
purpose of showing the intention of the writer. In order to
use them for this purpose it was necessary to show who the
writer was, and that all the articles produced were by the
sam_e hand. This not having been done we are compelled
to take the article before us as it stands, without any of the
informing commentaries which were sought to be drawn from
one previous article in particular by the learned Advocate-
General."
In view of the authorities referred to above, which have been
hitherto relied on, it is difficult to see why proof of the identity
and intention of the writer should be necessary to establish the
liability of the publisher. It is clear that, if the writer himself
be on trial, his intention is directly in issue, and if collateral
matter is then sought to be used for any purpose, its authorship
must be established, but in this case the publisher alone was
before the Court.
It will be observed that most of the matter which has
hitherto formed the subject of prosecutions for sedition has
been in the vernacular, which has necessitated the use of
translations. It is therefore desirable to note what has been
said by the Courts on this subject.
Here again, as in so many other instances, .Iiistice Stra-
chey's memorable charge to the jury in Tilak's case, furnishes
WHAT IS NOT SEDITION. 109
most valuable directions. "You have heard," his lordship
said, " nmch discussion as to the exact meaning of various
expressions in these articles, and the best way of rendering
certain passages into English. You must remember that there
has been a dispute about the correctness of some of the trans-
lations which have been put before you. For most of you
the documents that you have to deal with are, in their original
form, in a foreign language. I do not intend to trouble you
with any criticism of the various renderings which are in
evidence. The discussions which have taken place on the sub-
ject are, 1 assume, within your recollection. They, no doubt
were necessary and it is important that we should, as far as
possible, exactly understand the true meaning of everv word
But it would be a great mistake to let the decision of this case
turn upon mere verbal niceties of translation, or discussions
as to the best English equivalents of particular Marathi terms.
We must look at these articles, not as grammarians or philolo-
gists might do, but as the ordinary readers of the Kesari would
look at them — readers who are impressed, not by verbal
refinements, but by the broad general drift of an article."
"Two translations," his lordship continued, "have
been put before you, one of which has been called a free, and the
other a literal translation. Both are equally o£ficial transla-
tions. "What I would advise you is that whenever there is no
dispute about the accuracy of the free translation, where its
rendering has not been challenged, you should be guided by
the free translation. It is altogether a mistake to suppose that
because a translation is literal it is more correct than the trans-
lation which is called free. It does not follow that the most
literal translation of a passage is that which best conveys its
meaning in English. What we want to get at is the way in
which an ordinary reader would understand the whole article
and hence to gather the intention with which the article was
written and published. An absolutely literal translation from
one language to another may give in the second language an
extremely imperfect and really inaccurate idea of the meaning
and spirit of the original. These documents have been trans-
lated by a translator of the Court; a Hindu gentleman, whose
capacity to translate cannot for one moment be doubted.
110 THE LAW OF SEDITION.
The accuracy of his literal rendering of the articles has not been
challenged by the defence ; but the defence have found fault
with the free translation as regards certain expressions occur-
ring in the articles. The free translation does not profess to
give the absolutely literal meaning of the words, but their
genuine equivalents in English. As I have said, where the accu-
racy of the free translation is not disputed, I advise you to be
guided by that : where there is any dispute I advise you to
compare the literal with the free translation, to look at the con-
text of the disputed passage, and to judge, by reference to that,
which conveys the true meaning and intention. Again, where
there is a conflict of evidence as to the meaning of a particular
expression, I would advise you to give, under the usual rule,
the benefit of any reasonable doubt to the accused."
From these observations two conclusions are clearly dedu-
cible. One is that a translation should accurately convey the
general sense of the original, which is really all that is wanted ;
and the other, that a free or idiomatic translation is better cal-
culated to do this than a literal one, and is therefore to be
preferred.
CHAPTER XI.
INCIDENTS AND RULES OF PRACTICE.
It is a well-established rule thac seditious matter may not
be reproduced from other publications. This is as much an
offence as the publication of original matter, presumably
because in effect it is equally mischievous. The offence lies in
the publication. This rule was laid down by Lord Fitzgerald in
Sullivan's case in clear and emphatic language as follows: "As
to the articles extracted from other papers, it was recently
contended that even if these articles were of a seditious or
treasonable character, yet that the defendant was justified in
publishing them as foreign news. I am bound to warn you
against this very unsound contention, and I may now tell you
with the concurrence of my learned colleague, that the law
gives no such sanction, and does not, in the abstract, justify
or excuse the republication of a treasonable or seditious article
no matter from what source it may be taken."
His lordship then proceeded to state that there miwht be
circimistances sufficient to rebut the inference of criminal
intention, but in the absence of such circumstances it vvould be
reasonable to infer from the fact of republication some seditious
object.
"If the law," he added, "be powerless in the case of such
publications, then we may as well blot out from the Statute book
the chapter on seditious libel, which would take away from society
the great protection which the law affords to their institutions.
You see, therefore, how necessary it is to assert this part of the
law, and therefore I again emphatically tell you that it is no
justification or excuse for a publication, treasonable or sedi-
tious, that it appeared first in another paper, whether local or
foreign" (see Ch. ii).
The same principle was applied by the Calcutta High Court
in the case of Apurba Krishna Bose v. Emperor (35 Cal., 141),
already referred to,- though apparently on different grounds.
In that case one of the charges against the accused, who was
112 THE LAW OF SEDITION.
the priuter of the Bande Mataram, was that he had repub-
lished in his paper certain official translations of seditious
matter which had appeared in the Jugantar, another local paper,
the printer of which was also tried for sedition.
The articles in question, or one of them, had been the sub-
ject of the charge against the Jugantar, and the republication
professed to be a report of the proceedings in that case. The
rule laid down by Lord Fitzgerald would have been applicable
here no doubt. The learned Judges, however, who decided the
case appear to have based their conclusions on the fourth Ex-
ception to section 499 of the Penal Code which relates to de-
famation, an oiJeuce which was apparently not charged against
the accused. They held that the articles in question did not
" form part of the proceedings of a Court of Justice," because
' ' the conviction for sedition in the Jugantar case was based on
one article only." "There was therefore no excuse for the
wholesale publication iu the Bande Mataram of these transla-
tions."
This leaves it doubtful whether the accused would have
beeu guilty if he had limited himself to the reproduction of
the single article which formed the subject of the charge in
the other case, instead of resorting to wholesale publication.
Nor is it clear whether it may be taken as a rule that exceptions
to section 499 of the Penal Code can be applied to cases under
section 124A, when sedition is the only charge against the
accused.
The learned Judges conclude their observations in the
following terms : — "The dissemination of temptation is not
excusable on any principle with which we are conversant."
The dissemination of "temptation " is not expressly provided
for in section 124 A, and it is therefore to be regretted that no
opinion is expressed as to whether it is within the mischief
contemplated or not.
Finally, there are a few points of general importance which
are usually impressed upon juries in trials for sedition. These
may be gathered passim from the celebrated charge of Lord
Fitzgerald iu Sullivan's case (see Ch. ii), but they have also
been summarioed by Justice Strachey in .Tilak's case in clear
and precise terms. The learned Judge there said: — "In
INCIDENTS AND RULES OF PRACTICE. 113
considering what sort of effect these articles would be likely
to produce, you must have regard to the particular class of
persons among whom they were circulated, and to the time and
other circumstances in which they were circulated. In judg-
ing what would be the natural and ordinary consequences of a
publication like this, and what therefore was the probable in-
tention of the writer or publisher, I must impress on you, as
perhaps the most important point in my summing up, that you
must bear in mind the time, the place, the circumstances, and
the occasion of the publication. "
"An article," his lordship continued, "which if pub-
lished in England, or among highly educated people, would pro-
duce no effect at all — such as an article on cow-killing — might, if
published among Hindus iu India, produce the utmost possible
excitement. An article which, if published at a time of profound
peace, prosperity, and contentment would excite no bad feeling,
might at a time of agitation and unrest excite intense hatred to
the Government. When you are considering the probable effect
of a publication upon people's minds, it is essential to con-
sider who the people are. In my opinion it would be idle and
absurd to ask yourselves what would be the effect of these
articles upon the minds of persons reading them in a London
drawing-room or in the Yacht Club in Bombay; but what you
have to consider is their effect, not upon Englishmen or Parsig,
or even many cultivated and philosophic Hindus, but vipon
the readers of the Kesari among whom they were circulated and
read — Hindus, Marathas, inhabitants of the Deccan and the
Konkan. And you have to consider not only how such articles
would ordinarily affect the class of persons who subscribed
to the Kesari, but the state of things existing at the time, when
these articles were disseminated among them. Then you have
to look at the standing and position of the prisoner Tilak. He
is a man of influence and importance among the people. He
would be iS a position to know what effect such articles would
probably produce iu their minds."
The gist of these salutary directions appears to be that in
order to decide whether any publication is likely to excite dis-
affection or not, it is necessary to consider all the circumstan-
ces under which it was published. It is therefore important
D, LS 8
114 THE LAW OF SEDITION.
to note the time, the place, and the occasion of its issue ; the
character of the people who are addressed, and even the posi-
tion of the writer or speaker, because the effect must inevitably
vary with the circumstances.
Moreover, the principle is the same whether sedition is
preached from the platform or disseminated through the Press.
" In estimating the natural consequences which will flow from
|)articular language," says Mr. Mayne, "all the surrounding
circumstances of the case are material, the excited state of public
feeling, the ignorant or hostile character of the persons address-
ed, the critical condition of affairs, and the influence of the
speaker.' ' These remarks have been approved by the Madras
High Court in the case of Chidambaram Pillai v. Emperor (32
Mad., at p. 30).
The last point to be noticed in the section is the provision
regarding punishment. No alteration was made as to this by
Act IV of 1898. It will be observed that three kinds of
punishment are provided for the offence — transportation,
imprisonment, and fine.
Transportation may be for life or any shorter term, but
not less than seven years (8 W. R., Cr. 2). Imprisonment may
be of either description, as the Court shall direct (s. 60, P. C),
but must not exceed three years. It had been proposed to
extend the term to ten years, but, as has been already pointed
out, the Select Committee decided to maintain the law as it
stood.
Fine may be imposed either alone, or in addition to a sen-
tence of transportation or imprisonment, and without limit.
The question of the amount and character of the punish-
ment, which it is proper to award in any given case, is one of
no small difficulty. The Code affords no assistance in this
respect, beyond fixing the maximum penalties. Under these
circumstances recourse must be had to judicial authority. The
observations of Sir C. Farran, C. J., in the case of Ramchandra
Narayan (22 Bom., 152) will afford a valuable guide to the
solution of the difficulty. The facts of this case have been set
out in Chapter VI, and his lordship's remarks on the criminal
liability of the accused in Chapter IX. The two accused had
INCIDENTS AND RULES OP PRACTICE. 115
Been sentenced, Ir^spectively, to transportation for life and for
seven years, by the Sessions Judge.
His lordship there said:— '^ As to punishment, it should
in each case be commensurate with ' the offence. As to the
article itself, there is nothing practical about it. It sets nothing
tangible before its readers. It is calculated, I think, rather to
excite unrealisablc dreams — abstract feelings of discontent than
to spur to immediate action, and I do not think that the other
articles, put in to show the intent of the writer, carry the case
any further. This should be taken into consideration. The
article also does not vituperate the Government at present
existing. This is, I think, a feature to be borne in mind. It
appears, after all, in but an obscure paper published in a small
town, by an obscure person. The circulation of the Pratod is
very, small. The libel is written at a period when profound
peace dwells in the land. At the same time the article certainly
is calculated, and I think intended, to widen the slight breach
or misunderstanding which in some parts of the country exists
between the Government and its subjects, when the aim of all
good writers should be to lessen and to close it. We alter the
sentence on the first accused to one year's rigorous imprison-
ment. This will, I think, be commensurate with the offence,
.and will be amply sufficient to deter other newspaper managers
from publishing similar articles. The accused No. 2 is an old
man. His oft'euce is rather one. of negligence in permittinu' the
publication of the article than of taking an active part in it.
Three months' simple imprisonment will, I think, be an ade-
quate punishment in his case — and we alter it accordingly.
The more severe punishment, which the section admits of, ought,
in my opinion, to be reserved for a more dangerous class of
writing published in times of public disturbance."
To this may be added the remarks of Justice Ranade, in the
same case, which were as follows : — " The Sessions Judge was
right in convicting both the accused. At the same time he
greatly overrated the influence and mischief of the publication.
The proprietor's responsibility is of a very technical character,
a,nd even the writer, must be leniently judged because of the
insignificance of his paper, its small circulation, and his poor,
■education." ' '
116 THE LAW OF SEDITION.
In direct contrast to this is the case of Amba Prasad (20
All., 55), already referred to (see Ch. vi), where the Sessions
Judge had imposed a sentence of eighteen months' rigorous
imprisonment, which the High Court found to be entirely
inadequate. There the accused had tendered a belated apology,
but their lordships found "that his object was to excite not
merely passive disaffection," but "active disloyalty and re-
bellion."
"An apology," their lordships added, "particularly
made after commitment, in such a case as this, need not be
considered. Having regard to the gravity of the offence which
Amba Prasad committed, and to the misery, ruin, and punish-
ment which he might have brought upon ignorant people, the
sentence which was passed upon him was entirely inadequate."
These may be taken as typical cases, and from the prin-
ciples laid down in each, it would appear that the real test to
be applied, in questions of punishment, is the amount of mis-
chief which is calculated to result from the commission of the
offence. This after all is the fairest test that could be employed.
Some objection was raised in Council to the maximum
sentence of transportation for life, but it was pointed out by
the Law Member that a safeguard was provided by an appeal
to the High Court, and that, in the only case then on record,
where such a sentence had been imposed by a Sessions Judge,
the High Court had reduced it. This was the case of Ram-
chandra Narayan.
It is to be observed, further, that sentences are regulated,
by Chapter III of the Criminal Procedure Code, according to
the jurisdiction of the Courts. An Assistant Sessions Judge
is not empowered to pass a sentence of transportation exceeding
seven years. Neither a Chief Presidency Magistrate, a District
Magistrate, nor a Magistrate of the First Class specially
empowered to try the case, can pass any sentence of trans-
portation at all, and their jurisdiction is otherwise limited to
two years' imprisonment and a fine of one thousand rupees.
Section 408, cl. (c), provides that an appeal from the con-
viction of a Magistrate under Section 124 A, shall lie to the
High Court, but from clause {b) it would seem that an appeal
from a conviction by an Assistant Sessions Judge would only
INCIDENTS AND RULES OF PRACTICE. 117
lie to the High Court if the seateuce passed by him was one of
transportation or of imprisonment for a term exceeding four
years. It would otherwise lie to the Court of Session, which
seems anomalous.
Section 410 provides that an appeal from a conviction by
a Session Judge, or an Additional Sessions Judge shall lie to
the High Court. No other Courts are empowered to try sedition
cases. So that an appeal would seem to lie to the High Court
in every case but the one mentioned in section 408. It may
be. however, that if an Assistant Sessions Judge tried a sedition
case, he would try it as a Court of Session, in which case section
410 would apply, and give aright of appeal to the High Court.
Sedition being an offence against the State no prosecution
can be instituted except under the authority of the Govern-
ment. This provision was made in 1870, by section 13 of the
Act which first introduced the offence into the Penal Code, as
has been already shown in Chapter II. It was re-enacted in
1882, and again, at the time of the amendment of the section
by Act IV of 1898, as section 196 of the present Criminal
Procedure Code (Act V of 1898).
" Under Section 196 of the Code." said Justice Strachey
in Tilak's case, " no Court is to take cognisance of any offence
punishable under Chapter VI of the Penal Code, in which section
124A occurs, unless upon complaint made by order of, or
under authority from, the Governor-General in Council or the
Local Government."
As to how this may be proved at the trial the learned
Judge continued : — " In this case a complaint was made by the
Oriental Translator to Government, an order by the Local
Government to the complainant for the prosecution of the
prisoner under section 124A is produced, and the complainant
in the witness-box has shown that he instituted the prosecution
in respect of these articles by order of the Government."
This his lordship held was sufficient to prove the fact.
Two objections were taken, by the defence, to the form of the
order : one, that by the use of the word ' ' articles ' ' it did not
sufficiently describe the matter which was charged as seditious,
and the other, that it did not specify, by dates or otherwise,
the extracts in respect of which action was to be taken.
118 THE LAW OF SEDITION.
His lordship's answer to this was : — " It is only necessary
to see whether the complaint relates to matters falling within
the words ' certain articles appearing in the said newspaper,'
and it is obvious that it does, and the order is therefore com-
plied with."
" It maybe desirable," he added, "and I think it is,,
that orders under section 196 should be expressed with greater
particularity, but I cannot read into the section restrictions
which are not there. The section does not prescribe any par-
ticular form of order, and does not even require the order to-
be in writing. I am therefore of opinion that the order is
sufficient."
His lordship held further that even if it were otherwise,
and the Magistrate had in fact no jurisdiction to commit the
accused for trial, section 532 of the Criminal Procedure Code
creates an exception, " and provides that in such a case the
High Court may accept the commitment if it considers that
the accused has not been injured thereby, unless during the
proceedings before the Magistrate he objected to the Magis-
trate's jurisdiction." After citing the Full Bench, decision in
Queen-Empress y. Morton {9 Bom., 288) he continued: — "In
this case no objection was taken in the Magistrate's Court, and
I cannot hold that the accused has been in anyway prejudiced.
The object of section 196 is to prevent unauthorised persons
from intruding in matters of State by instituting State prose-
cutions, and to secure that such prosecutions shall only be-
instituted under the authority of the Government. I have
no doubt that these proceedings have been authorised by the-
Government, and I disallow the objection."
These views were endorsed by the Full Bench that sat
to hear the application for leave to appeal to the Privy Council.
Sir C Farran, C. J., on that occasion, said: — "As to th&
question of jurisdiction, we are all of opinion, without doubt,
that this prosecution was instituted under the authority of
Government, and that, to use the words of the present Code,
this complaint was made ' by order of or under the authority
of Government.' There is no special mode laid down in th&
Code whereby the order or sanction of Government is to be
conveyed to the officer who puts the law in motion, nl this
INCIDENTS AND RULES OF PRACTICE. 119
case the prosecution was conducted by the Government Soli-
citor, it was instituted by the Oriental Translator to Govern-
ment, and he produced the written order of Government to
institute the complaint. Now though the complaint must
undoubtedly contain the article complained of, to give infor-
mation to the accused of the charge against him, there is
nothing in the Code to show that the written order to make
the complaint — if written order is required — must specify the
exact article in respect of which the complaint is to be made."
The views of Justice Strachey were also endorsed by the
Calcutta High Court in the case of Apurba Krishna Bone v.
Emperor (35 Cal., p. 149), already referred to. The learned
Judges, however, who decided that case, while expressing
their 'entire agreement with Strachey, J.,' observed that, "the
section does not use the word aanction,'' and that "orders
under section 196 should be expressed with sufficient particu-
larity, and with strict adherence to the language of the section."
This would seem to suggest that the word sanction ought not
to be used, as, in fact, it had been in the Government orders
which authorised the prosecution in that case. But in the very
same passage, their lordships were constrained to use it them-
selves, as being a " Convenient word." The Full Bench also
used it, as an equivalent for authority. Indeed, it is difficult
to avoid using it, as the learned Judges would seem to have
found, for to authorise is to sanction.
The section, then, appears to contemplate that no prose-
cution for sedition can be entertained by any Court, unless
the complaint has been either ordered or authorised by the
Government, and, further, that the order, or authority, or
sanction, need not be — though it usually is — in writing.
More recently the Madras High Court have followed the
ruling of Justice Strachey, in the case of Chidambaram Pillai
V. Emperor (32 Mad., p. 9). In that case the order of Gov-
ernment directing the prosecution (under s. 196) purported
to authorise the institution of criminal proceedings against
Chidambaram Pillai and two others, under section 124A, and
other sections of the Penal Code, in respect of speeches delivered
by them at Tuticorin and Tinnevelly in the months of February
and March 1908. The prosecuting Inspector of Tinnevelly
120 THE LAW OF SEDITION.
was further directed to prefer complaints of offences under the
sections named without delay against the three persons named
in the order. The substance of this order was telegraphed by
the Government to the District Magistrate, who orally com-
municated it to the prosecuting Inspector and instructed
him to file a complaint, which was done the same day.
In commenting ou these facts Sir A. White, C. J., said : —
" The order states the sections under which the institution of
the criminal proceedings is authorised, and, in general terms,
the times when the speeches in respect of which the proceedings
were authorised, were delivered. In our opinion there is
nothing in the section to warrant the construction that the
actual complaint must be expressly authorised by the local
Government. The only question which the Court has to
consider with reference to section 196, Criminal Procedure
Code, is — ' Is the complaint which I am asked to entertain
a complaint made by order or under authority of Govern-
ment ? ' "
Their lordships, however, dissented from the view
expressed by the Full Bench that " the complaint should
contain the article complained of to give information to the
accused of the charge against him." Their lordships con-
sidered this to be unnecessary. It may be, however, that
the learned Judges who constituted the Full Bench only meant
that the complaint should specift/ the article complained of,
which certainly seems reasonable.
It is clear, then, that section 196 of the Criminal Proce-
dure Code renders tlie sanction of Government imperative,
and there is no remedy for the want of it, except as provided
by section 532. If, therefore, section 532 he for any reason
excluded, there is an end of the question of jurisdiction.
The sanction of the Government, which has been made a
condition precedent to every prosecution for sedition, was
stated in Council to have been provided as a safeguard against
the possible abuse of the section.
Another safeguard was provided in section 95 of the Code,
which is one of the " General Exceptions." By the Act of
1870 (s. 13) the provisions contained in Chapter IV of the Penal
Code, relating to " General Exceptions, " were made applicable
IXCIDENTS AND RULES OF PRACTICE. 121
to section 124 A. This, it would appear, was hardly
necessary in view of section 6 of the Code, which provides : —
*' Throughout this Code every definition of an offence, every
penal provision, and every illustration of every such definition
or penal provision, shall be understood subject to the exceptions
contained in the Chapter entitled ' General Exceptions,' though
those exceptions are not repeated in such definition, penal pro-
vision or illustration." In any case, the only one of them
which would seem applicable to section 124A, is the one re
ferred by the Law Member as contained in section 95.
At the time of the legislation of 1898, a note of dissent was
formulated by one of the opponents of the Bill in these terms : —
' ' It is quite possible to punish a journalist or public speaker who
is only guilty of using indiscreet language calculated at most to
give rise to trifling feelings of irritation." The answer to this,
it was pointed out, was to be found in section 95 of the Penal
Code, which provides that ' ' Nothing is an offence by reason
that it causes, or is intended to cause, any harm, if that harm
is so slight that no person of ordinary sense and temper would
complain of such harm." In such a case therefore a journalist
would have nothing to fear.
A further safeguard against abuse is provided by the
Criminal Procedure Code in the restrictions imposed on the
Police, who are not empowered to arrest without a warrant.
Again the jurisdiction to try offences under section 124 A is
restricted to Courts of Session, Chief Presidency Magistrates,
District Magistrates, and Magistrates of the First Class speci-
ally empowered by the Local Government in that behalf.
The offence is stated to be not compoundable. This would
seem to mean not compoundable by the complainant or prose-
cutor; but the Government are obviously entitled to withdraw
a prosecution, as they did in the Bangohasi case, and in other
cases subsequently.
Sedition is a non-bailable offence, but even so relief may
be obtained under the provisions of ss. 497 — 8 of the Criminal
Procedure Code.
CHAPTER XII.
ABETMENT OV SEDITION.
The oilence of abetting sedition is not specially provided
for in section 124A. For abetment of sedition, therefore,'
recourse must be had to the general provisions of the Penal
Code, which are contained in Chapter V (ss. 107 — 120).
The Act of 1870 which introdviced section 124A into the
Code in its original form, provided also, as already stated (see
Ch. i), for the application of Chapter V to the offence of sedi-
tion. This would seem to have been barely necessary, for by
the same Act was provided section 40, defining the term
"offence," as "a thing made punishable by this Code." Now
inasmuch as sedition is a thing made punishable by the Code,
i.e., an ' offence,' it is clear that the general provisions relating
to the abetment of all offences would become applicable per se.
But even if section 124 A had provided specially for abet-
ment, as section 121 does, this, upon the authority of Emperor v.
Ganesh Damodar Savarkar (34 Bom., 394), would still be so, and
the general provisions of the Code could be referred to for the
purpose of explaining the special one.
Abetment is defined by section 107 of the Code in the
following terms : — ' ' A person abets the doing of a thing, who —
(1) instigates any person to do that thing ; or,
(2) engages with one or more other person, or persons
in any conspiracy for the doing of that thing if an
act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that
thing; or,
(3) intentionally aids, by any act or illegal omission, >
the doing of that thing."
It will thus be seen that there are three ways in which an
act may be abetted, viz. : — by instigation, by conspiracy, or by
aid and assistance.
But it will also be observed that in each case abetment must
precede or accompany the act abetted. There is no provision
ABETMENT OF SEDITION. 12S
for an accessory after the fact, as there is in the English law.'
An abettor may be said to be an accessory before the fact.
These provisions are, however, subject to further quali
fications.
First, v,-here an offence is abetted by instigation, it is
explained that " ' To constitute the offence of abetment, it
is not necessax}'' that the act abetted should be committed, or
that the effect requisite to constitute the offence should be
caused."
This would not apply of course to eitlier of the other forms
of abetment — by conspiracy or by aid — for both of them
contemplate the commission of the act abetted.
It is further explained that "It is not necessary that the
person abetted should be capable by law of committing an
offence, c^r that he should have the. same guilty intention or
knowledge as that of the abettor, or any guilt}' intention or
knowledge."
Such a case might arise where seditious matter was dis-
seminated through the medium of innocent newsvendors or
placard-men, or even through a series of such agents. It is
immaterial whether instigation be, direct or indirect.
Secondly, the Code explains that "It is not necessary to
the commission of the offence of abetment by conspiracy, that
the abettor should concert the offence with the person who
commits it. It is sufficient if he engage in the conspiracy in
pursuance of which the offence is committed."
Thirdl}'', it is stated that, " whoever, either prior to or
at the time of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby facilitates
the commission thereof, is said to aid the doing of that act."
These provisions may be said to define the law of abet-
ment, but the penalties have still to be considered.
In the absence of any express provision, as in the case of
sedition, it is provided by section 109 that, " if the act abetted
is committed in consequence of the abetment,' ' the punishment
shall be the same as that " provided for the offence."
It is explained that ' ' An act or offence is said to be com^
mitted in consequence of abetment, when it is committed in
124 THE LAW OP SEDITION.
consequence of instigation, or in pursuance of the conspiracy,
or with the aid which constitutes the abetment."
If/ on" the other hand, the offence abetted " be not com-
mitted in consequence of the abetment," and that offence is
punishable with transportation for life, it is provided by section
115 that the abetment shall be punishable "with imprison-
ment of either description for a term which may extend to seven
years, and shall also be liable to a fine."
It has to be borne in mind in this connection that, although
section 124:A provides a maximum punishment for sedition of
transportation for life, it limits the term of imprisonment to three
years. There may, of course, be cases in which the abettor is
more guiltj'' than the person abetted, or equally so, and this was
in fact the case in the Madras appeals (32 Mad., 3). Chidam-
baram Pillai, who was the abettor, had received from the
Sessions Judge a sentence of transportation for life, while the
preacher of sedition himself received ten years. These sentences
were reduced by the High Court to equal terms of six years'
transportation.
It has also to be remembered that in cases of sedition there
can be abetment of the attempt to cause disaffection, as well
as of the act of sedition. In the Madras case the attempt was
successful, whereas in the Calcutta case of Leakut Hossein
Khan (App. No. 214 of 1908) it was a failure ; but in both cases
the abettor was convicted.
Then it is provided by section 114 that, " Whenever any
person, who, if absent, would be liable to be punished as an
abettor, is present when the act or offence for which he would
be punishable in consequence of the abetment is committed,
he shall be deemed to have committed such act or offence."
This provision merely defines the position of what, in the
English law, is known as a principal in the second degree, as
distinguished from an ordinary abettor, or accessory before the
fact.
The definition given in the Code of instigation is not
exhaustive. It is in fact limited to incitements by wilful
misrepresentation or concealment.
Instigation is defined by Mr. Mayne in his ' Criminal Law
of India' in these terms: — "A person instigates a crime who
ABETMENT OF SEDITION. 12^
incites or suggests to another to do it, or who impresses upon
his mind certain statements, whether true or false, with the
intention of inducing him to commit a crime."
In ' Russell on Crimes ' a person is stated to instigate
another, ' ' when he actively suggests or stimulates him to an aety
by any means or language, direct or indirect, whether it takes
the form of express solicitation, or of hints, insinuation, or
encouragement."
" The offence of abetment by instigation," says Mr.
Mayne, " is complete as soon as the abettor has incited another
to commit a crime, whether the latter consents or not, or
whether, having consented, he commits the crime, nor does it
make any difference in the guilt of the abettor that the agent
is one who, from infancy or mental incapacity, would not be
punishable ; or that he carries out the desired object under a
mistaken belief that the act he is employed to do is an innocent
one. The offence consists in the abetment. The consequences
aie only material as aggravating the punishment."
There has, so far, been no reported case of abetment of
sedition by instigation, though the case of Chidambaram
Pillai came very near it. The position there was described by
the Sessions Judge in these terms: — "According to the pro-
secution case, the second accused, recognising the powers of
the first as an orator, quickly got hold of him, invited him to his
house, and commenced with him a campaign of seditious
speeches, which so inflamed the minds of the populace against
the Government authorities and the European community, that
they caused the mill hands of the Coral Mills Company to go on
strike, and ultimately caused the riots at Tuticorin and Tinne-
velly."
If the case had rested on instigation alone, it would
have been unnecessary, of course, to prove its consequences,
but having regard to the plain facts, the case was regarded by
the High Court as one of conspiracy.
Criminal conspiracy, as defined in ' Russell on Crimes,
consists in "an unlawful combination of two or more persons
to do that which is contrary to law." " But the best estab»
lished definition," it is added, " of the offence is that given by
Willes, J., on behalf of all the judges in Mulcahy v. R. (3 H. L.,
,126 THE LAW OF SEDITION.
p. 317), and accepted by the House of Lords in that and
subsequent cases — ' A conspiracy consists not merely in the
intention of two or more, but in the agreement of two or more to
do an unlawful act, or to do a lawful act by unlawful means.
So long as a design rests in intention only it is not indictable."
" And so far as proof goes, conspiracy, as Grose, J., said
in R. V. Brisac (4 East, 171), is generally ' a matter of inference
deduced from certain criminal acts of the parties accused, done
in pursuance of an apparent criminal purpose in common
between them.' "
Seditious conspiracy has also been aptly defined by Sir
James Stephen in his " Digest of the Criminal Law " (see Ch. ii).
The ofience of abetment dby conspiracy, according to the
Penal Code, is not complete unless some ' ' act or illegal omis-
sion takes place in pursuance of that conspiracy," but the acts
themselves may afford the best evidence of its existence. And
so the Indian Evidence Act (s. 10) provides that, " when there
is reasonable ground to believe that two or more persons have
conspired together to commit an offence, anything said, done,
or written by any one of such persons in reference to their
common intention, after the time when such intention was
first entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy, as for the
purpose of showing that any such person was a party to it."
These principles were amply illustrated in the . case of
Chidambaram Pillai v. Emperor (32 Mad., 3). In this case two
persons w-ere convicted by the Additional Sessions Judge of
Tinnevelly, Subramania Siva and Chidambaram Pillai; the
one for sedition and the other for abetment of that offence.
The charges against the two accused were in respect of
three speeches delivered by the former on the 23rd and 25th
of February and the 5th of March 1908. The second accused
was present on the first two occasions, but not at the last.
The speeches selected for the charge were part of a series of
orations delivered by both in pursuance of a political pro-
gramme devised by the second accused.
" Each entered," their lordships observed, " from time
to time on the other's ground, and the goal to which both
ABETMENT OP SEDITION. 127
pointed was the departure of all foreigners and all things
foreign from the land, and the resulting Swaraj and pros-
perity."
At the hearing of the appeal the points for determination
were the character of the speeches, the fact of their actual
delivery, the nature of the abetment, the factum of a con-
spiracy, and the consequences which resulted. In addition,
several questions of procedure were decided.
" The burden of the speech of the 23rd Febiuary," their
lordships said, " was ' the way to obtain Swaraj.'' "
" There has been considerable discussion, " they con-
tinued, "as to the meaning of this word. We have been refer-
red to the case of Beni Bhvshan Roy v. Em/peror (34 Cal., 991).
There the learned Judges express the opinion that the term
does not necessarily mean government of the country to the
exclusion of the present Government, but its ordinary ac-
ceptance is ' home rule ' under the Government. The Judges
point out that the vernacular word used, if literally trans-
lated, would mean ' self-government.' "
There can be little doubt that the literal meaning of the
word Swaraj (or Swarajya) is what the Oriental Translator to
the Government stated it to be inTilak's case (22 Bom., 112),
viz.: — "One's own government," {i.e., uative rule). The
word occurs in the article on " Shivaji's Utterances,'''' in the
passage, " I delivered the country by establishing ' Swa-
rajya, ' " i.e., my own kingdom.
This interpretation has, moreover, been endorsed by high
authority. In the case of Emperor v. Ganesh Damodar
SavarJcar (34 Bom., at p. 402), Justice Chandavarkar said : —
*' The 9th poem, which is headed ' Who obtained independence
without war ? ' winds up with this remark ' He who desires
Swarajya (one's own rule) must make war.' "
Probably the best equivalent for the term ' Sivaraj ' is
the one which their lordships adopted, viz. : — ' indepen-
dence.' Their lordships held that there could be no doubt
at least as to what the accused meant by it, for in ' ' his own
statement he defined the gospel which he preached as a gospel
of ' ahsolute Swaraj.' The people of India," he said " were
now trying to establish, in place of the foreign government,
128 THE LAW OF SEDITION.
their Swaraj." An important witness for the defence had^
moreover, confirmed this by stating — ' ' the Swaraj which the
first accused inculcated was a free and independent Swaraj,
independent of British Government."
" The sense in which a speaker employs it," their lord-
ships added , ' ' must be judged mainly by the context of the
speech in which the word is used. We have the passage
' without bloodshed nothing could be accomplished.' We
cannot read the passages with reference to the sacrifices made
by Japan in the war with Russia iu any other sense than as an
incitement to revolt. The phrase ' If all Indians whether
strong or weak come forward as strong men, foreign Gov-
ernment will collapse and Swaraj will be theirs' is an appeal
to his audience to replace the foreign Government by
' Swaraj. ' "
The general tenor of the other two speeches their lord-
ships found to be much the same. " We find a passage,"
they said, " 'When once Swaraj is restored, the country-
should belong to Indians without any connection between the
Indians and Englishmen. We ought not to allow them even to
have their flags, which can be easily rolled and thrown into
the sea.' "
Their lordships were of opinion that these speeches were-
seditious within the meaniEg of section 124A.
As to the evidence that the speeches were delivered, and
the seditious language actually uttered, this consisted of the
notes taken by Police-officers who were deputed to attend
the meetings for this purpose, and who gave their evidence at
the trial and testified to their accuracy. This, it was held,
was the method adopted in some of the State tmals ia
England, and was approved. Their lordships said : — "' With
regard to the speeches which were proved by the oral evidence
of the witnesses, we are of opinion that, in the circumstances
stated, the learned Judge was right in allowing the notes of the
Police-officers to become part of the record in the case."
"We accept," they added, "the prosecution evidence as
giving a substantially correct summary of the speeches delivered
by both the accused."
ABETMENT OF SEDITION. 129
The next question to be considered was the question of
abetment by the second accused, and the evidence adduced
in support of it. This again involved the further question of
conspiracy. As to this the evidence was chiefly circumstan-
tial. The facts relied on by the Crown were — ^that the second
accused was an influential person in Tuticorin where the other
was a stranger, that he accommodated him in his house, that
together they attended the meetings at which the second
accused usually presided, that the tenor of their speeches
was the same — they both preached the gospel of boycott
and Swaraj — and that they mutually supported one another
in carrying out a definite political programme. In addition
to these significant facts, there was a statement by the first
accused in which he admitted the existence of a mutual arrange-
ment for the delivery of these speeches.
Upon this their lordships observed : — " The evidence then
proves, beyond any reasouable doubt, the existence of a com-
mon design, in pursuance of which speeches were made by
Subraniania Siva, and it remains to be seen whether that
design included the commission of ofiences under section 124A
of the Indian Penal Code."
"If Chidambaram Pillai," they added, " engaged with
Subraniania Siva in a conspiracy to excite disaffection towards
the Government, and if, in pursuance of that conspiracy, and in
order to the exciting of disaffection an act ' took place,' then
Chidambaram Pillai is guilty of abetment of the excitement
of disaffection."
In reviewing a mass of evidence bearing on the immediate
consequences which resulted from the stream of seditious ora-
tory delivered by the two accused, their lordships observ-
ed : — ' ' There was evidence, which we see no reason for not
accepting, of a marked change in the demeanour of the people
after the speeches made by the first and second accused."
One witness said : — " Before the speeches the town was
quiet and law abiding, after the speeches commenced I noticed
a difference. The people of the town became more and more
lawless." Another said: — "After the speeches I heard one
evening as I was returning from my office to my house a crowd
of about 100 rowdies crying aloud ' Bande Mataram, let
D, LS 9
130 THE LAW OP SEDITION.
Swadeshi prosper, let the thalis of the Englishmen's wives be
torn off, hack to pieces the white men, the sous of harlots.'
This I heard in the first week of March. No acts had been done
by Europeans to provoke such utterances. WTien I first took
charge people were friendly and respectful to the authorities.
After the speeches they became contemptuous of the authorities."
This was the evidence of the Sub-Magistrate of Tinuevelly.
Another witness, the Agent of the B. I. Co., at Tuticorinj
said : — ' ' It became so bad that I could not allow my wife and
children to drive through the native town. We had to res-
trict ourselves to the beach road. Tl\e hostility of the people
became most marked after the 1st March 1908."
A native pleader testified thus : — ' ' Before February and
March people were well disposed and friendly towards Euro-
peans and authorities of Government. After the speeches
people showed signs of dislike, hatred and disloyalty. I move
freely among the people. I gathered my impressions from
conversations with difierent people. Crowds going to hear the
preaching shouted " Bande Mataram, let Swadeshi prosper,
and foreigners be damned (or perish)."
The arrest of the two accused on the 12th March was fol-
lowed by a serious riot at Tinnevelly. " Every public build-
ing," said the Sessions Judge, (except one), " was attacked
and fired, and the riot was only quelled by calling out the Ke-
serve Police and using firearms." The same evening at
Tuticorin a mob of 5,000 men, who had assembled to attend a
prohibited meeting, committed a serious riot, and pelted a
Magistrate with stones, who came to disperse them. The
crowd was finally dispersed by a Police force and the use of
firearms.
In commenting on these events, their lordships said : — " It
seems to us to be not unlikely that the arrest was the im-
mediate cause of the outbreak. At the same time we think
there can be little doubt that the fact of the arrest would not
have occasioned a riot had it not been for the excited state of
public feeling in Tuticorin and Tinnevelly — a state of things
which had been brought about by the inflammatory and sedi-
tioua speeches which had been delivered by the first accused
and others."
ABETMENT OF SEDITION. 131
In conclusion their lordships said : — ' ' The evidence leaves
no room for any real doubt that the political speeches of Sub-
ramania Siva were a part of the programme, and the delivery
of those speeches involved, as we have found, the excitement
of disaffection against the Government. This was one of the
things to be done in pursuance of the conspiracy, and as soon
as it was done, the appellant was guilty. The appellant Chidam-
baram Pillai was therefore rightly convicted."
It has been already pointed out that it is only in excep-
tional cases, such as this, that it is possible to prove that dis-
affection has actually resulted from the effort to produce it.
In the case of Reg. v. Burns (see Ch. Hi) the prosecution failed
to establish any connection between the speeches and the dis-
turbances which followed.
But this again raises the question whether, in the absence
of such evidence, it would be possible to establish a case of
abetment of sedition by conspiracy, having regard to the terms
of the second clause of section 107, which have been set forth
above. It has to be remembered, in the first place, that the
offence of sedition consists in the attempt as much as in the act.
Abetment of sedition may, therefore, be committed by abetting
the attempt to excite disaffection, without regard to the result.
But to abet by conspiracy it is necessary, in view of the
provision referred to, that an act should take place "in pursu-
ance of that conspiracy, and in order to the doing of that thing."
The question then is, can the act which is contemplated to
take place in pursuance of the conspiracy be an act which is
comprised in the attempt ? If an attempt is made in pur-
suance of a conspiracy, surely the act or acts which constitute
the attempt are within the purview of the provision. If this
be so, cadit qucestio.
Two other points are to be noted in this important judg-
ment. One is involved in the question whether section 196
of the Criminal Procedure Code, which requires the sanction
of Government for a prosecution for sedition, also requires it
for a case of abetment of that offence, seeing that abetment
is not specially mentioned in the section.
It was held that, inasmuch as abetment of sedition is
punishable under section 12-4 A, it is one of the offences com-
132 THE LAW OF SEDITION.
prised in Chapter VI of the Penal Code, and is therefore included
within the purview of section 196. This was clear from the
sections relating to abetment, none of which provide punish-
ments independently, and in paiticular from section 114.
The accused had been charged under section 109, in respect
of one speech at which he was not present, and under section
114 in respect of two speeches at which he was present. Section.
114 provides that if an abettor is present at the commission of
the offence, "he shall be deemed to have committed such
offence." "He is," their lordships said, "constructively
a principal and is to be punished as such. The offence is
punishable under section 124 A ; section 114 does not provide
any punishment. The offence of abetment plus presence on
the occasion of the crime abetted is constructively the offence
abetted, and is punishable as such and not as abetment.
The question was also raised whether an order of Govern-
ment, authorising in general terms a prosecution for sedition,
under section 124A, would include abetment as well. It was
held that the order in question, in that case, which had author-
ised the prosecution of certain persons under section 124A,
" in respect of speeches delivered by them," might be taken
to indicate not merely their own, but one another's speeches
as well as their own, and so to intend the inclusion of abet-
ment of sedition.
The second point was with reference to the admissibility
of speeches against the abettor which were not included in the-
charge. It was contended for the defence that although such
speeches might be used against the first accused to prove his
' animus,' intention, or meaning, the speeches of the second
accused could not be used to prove abetm.eut. It was held that
they could be used to prove the object of the conspiracy, as
part of the sayings and doings of the parties to the agreement,
which had been found to exist.
The case of Beg. v. Burns (see Gh. Hi) may also be referred
in this connection.
Abetment by intentional aid is perhaps the simplest form of
the offence, and the best definition of it is to be found in the'
Code itself. It is provided in section 107 — "Whoever either
prior to or at the time of the commission of an act, does any-
ABETMENT OF SEDITION. 133
thing in order to facilitate the commission of that act, and
thereby facilitates the commission thereof, is said to aid the
doing of that act."
A good ilhistration of this form of abetment is afforded in
a case decided by the Calcutta High Court on the 28th May
1908, which is unreported. It is the appeal of Leakut Hossein
Khan and Abdul Gaffur v. Emperor (No. 214 of 1908).
In this case the two appellants had been convicted by the
Sessions Judge of Backergunge of sedition and abetment of
that offence, and sentenced respectively to three and one
year's rigorous imprisonment.
The facts disclosed on the evidence were that the first ac-
cused, who " was a well-known speech-maker on Swadeshi
and similar topics in Calcutta," went forth on a mission to the
Mahomedans of Eastern Bengal, to enlighten them in certain
■doctrines which he founded on sundry texts of the Koran.
He proceeded first to Barisal, which was at that time, as the
Sessions Judge described it, ' ' the storm centre of Eastern
Bengal politics." The district of Backergunge had been,
moreover, declared to be a " proclaimed area," under Act
VI of 1907 (see Appx.), an Act for the prevention of sedi-
tious meetings. The text of the doctrines intended to be ex-
pounded to the Mahomedans was contained in a leaflet, of
which 1,000 copies had been printed, in the Urdu language.
Tho leaflet purported to be an answer to a letter which had ap-
peared in a Bombay newspaper, and it had, in fact, been sent,
in the first instance, to the editor of that paper for publication.
The editor of the paper, however, declined to publish it, as he
considered it inflammatory and seditious. The ofl&cial transla-
tion of the leaflet was as follows : —
" Musalmans ! Do not be apostates and infidels for the
sake of this world ' ' !
"On the 6th page of the daily ' Sultan-ul-Akhbar ' of
Bombay, dated the 24th May, 1907 A. D., a letter has been
published. The writer of it sends that letter from Dinapur
without disclosing his name — only ' Writer H. M.' is written in
it. There is no knowing whether he is a Moslem or a Christian.
In the aforesaid letter from a verse in the Koran — ' Ati-
ullah iva atkir rasiila wa ulil amr minkum' obey God and obey
134
THK LAW OF SEDITION.
the Propliet and obey men in authority among you — lie has
proved himself a heretic and a renegade and an utterly ignorant
jjerson by stating that allegiance to the Christian ruler for the
time being is binding upon Musalmans, and a means of pleasing
God. In this verse, primarily obedience to God is enjoined,
after that obedience to the Prophet is enjoined, after that in
the third degree obedience to a Musalman ruler is enjoined.
From the word ' MinMm' — among you — it is quite clear that
if the ruler be not a Musalman, allegiance to him is not binding
upon Musalmans. Besides this, if obedience to God and the
Prophet be maintained, then (only) is allegiance to a Moslem
ruler, as enjoined in the command, obligatory. To obey
the commands of the ruler for the time being which conflict
with (the commandments of) God and the Prophet would be
going smtiaj, because obedience to God and the Prophet is the
foremost (duty).
" Moreover, in the Chapter ' Maida ' there is a verse of
the Koran — ' Yd w'yohal lazimt dmana la-tattaa Khezu wal
Yahuda wan-nasara anliya\ — Oh true believers do not make
friends of the Jews and the Christians — that is, Oh true believ-
ers (Oh Musalmans) do not make friends with Jews and
Christians. By Christians is meant the Christian race. How
then can allegiance be due to one with whom friendship is for-
bidden by the sacred Korau ?
" Alas ! the writer of that letter seems to be an utterly
ignorant person — he does not even know the meaning of the word
^ Itaat^ (allegiance). ' ItaaC (allegiance) and ^ DostC (friend-
ship) are things entirely different from submitting to the
laws of the ruler for the sake of worldly advantage.
" Unhappy be the heart of the baseborn who commits his
faith to the \\inds for the sake of this world."'
Such was the text of the preacher, and the doctrine which
be wished to expound. A reception at Barisal had been ar-
ranged for him by the leaders of the Swadeshi movement, and
he at once commenced sounding the influential Mahomedans on
their views, and judiciously circulating his leaflet. In this
work of distribution he was assisted by the second accused,
Abdul Gaffur, who was well versed in Bengali as well as
Urdu. Leakut Hossein, moreover, made strenuous efforts ' ' to
ABETMENT OP SEDITION. 135
convene a meeting to wliich, be could address a wdz, or a reli-
gious sermon," but his efforts were unsuccessful, probably owing
to the prohibitory orders already referred to. His mission,
in fact, was a complete failure, for the leaders of Mahomedan
society in Barisal would have nothing to do with him, or his
leaflet. Some of the copies presented were politely returned,
and others made over to the authorities.
Upon these facts the learned Judges who decided the appeal
had no doubt that Leakut Hossein intended by his leaflet to
promote feelings of disaffection, as defined by Sir C. Petheram,
C. J., in the Bangobasi case (see Ch. iv), meaning thereby " a
disposition not to obey the lawful authority of the Govern-
ment, or to subvert that authority if and when occasion should
arise." Their lordships, moreover, found it "impossible
to suppose that he published the leaflet meaning it to have only
a religious tendency." Such a contention was clearly unten-
able, ' ' since no one could suppose it to be the duty of a Mahom-
edan to yield spiritual obedience to one who was not a Mos-
lem." Their lordships were considerably strengthened in their
views as to the meaning of the leaflet by the opinions ex-
pressed by " persons into whose hands it came, and for
whose perusal it seemed to have been intended," such as the
sub-editor who refused to publish it, and the Mahomedan gentle-
men at Barisal wbo were presented with copies. This being
the intention, the eiforts which were made to circulate the
leaflet were held to be clear evidence of "an attempt under
section 124A."
Their lordships also had no doubt as to the part played
by Abdul Gaffur. " We cannot doubt," they said, "that he
was acting in concert with Leakut, with a knowledge of the
contents and the meaning of the pamphlet he was distributing."
He was therefore guilty of abetment of sedition under section
124A, read with section 109 of the Penal Code. The convictions
and sentences were affirmed in both cases.
CHAPTER XIII.
THE LATER CASES.
The two cases of Queen-Empress v. Luxman and Queen-
Emyress v. Vinayek, which have been frequently referred to, were
probably the first trials held after the legislation of 1898. They
took place in the following year, and are fully reported in the
Bombay Law Reporter (vol. ii, pp. 286-322). The prosecutions
were in respect of a newspaper called the Gurakhi, published in
Bombay, of which the accused in the first case was the sub-
editor, while the accused in the second was the proprietor,
editor, printer and publisher.
The articles charged as seditious, which were common to
both cases were entitled (1) " ^Vlxat is the meaning of Rdj
and Ttdjya ? " (2) ' ' The Chafekars, the Dravids and Mr. Bruin
No. 1." The first accused was charged independently in respect
of a third article entitled ' ' The Chafekars, the Dravids, and
Mr. Brewin No. 2," while the second accused was likewise
charged in respect of one entitled "A white man's gun and
the death of a ' native. ' " All the articles had appeared in the
Gurakhi in the month of March 1899.
The first of the four articles commences with a definition
of the word ' Raja,' as being one who shines, and proceeds : —
" That man alone deserves the name of a ' raja ' who, having ac-
quired a kingdom by his valour, administers it well and pre-
serves it in peace, or who, in a kingdom acquired by his ancestors,
keeps himself in touch with his subjects, maintains prosperity
everywhere, is capable of protecting his subjects and drives his
car of sovereignty with true justice and impartiality."
After drawing this picture of the ideal ruler, the writer
proceeds to describe the real regime. "If such is the case,"
he continues, ' ' then will any sensible and educated person find
it difficult to determine how far our present rulers, the English,
are conducting themselves in conformity with this principle ?
We have before us direct, palpable evidence showing how far a
selfish ruler is liked by his subjects. If a snake hissing furiously
THE LATER CASES. 137
makes its appearance before us or before any other individual,
will anybody hesitate to smash its skull by striking an axe on
its head ? But if he is not armed with an axe or even its handle,
then only the case becomes different. Even if such an emer-
gency should arise, the man if he possesses physical strength
will, though the snake may coil itself round his body and attempt
to bite him, seize it by the neck tightly even in that crisis, and
calling for help, be able to cut its body into pieces ; but if he be
devoid of any strength at all then he can do nothing."
The writer then counsels the acquisition of physical strength
by his countrymen, and concludes thus: — "Of all kinds of
riches nothing is as precious as physical strength, and there is
not a shadow of doubt that any human being whatever, if he
possesses it, will by any desperate acts and by following the
example of even the beasts and birds, which fight furiously for
their liberty, be able to defend his divine and natural rights."
In commenting on this article Sir L. Jenkins, C. J., observ-
ed : — ' ' Of the first article, it is said, it starts with a discourse
on what is the true meaning of ' king and kingdom,' and indi-
cates that, for the happiness of his subjects the ruler should be in
touch with his people. The comment attributed to the first part
of the article is that siich a state of things cannot be said to exist
between the rulers and ruled of the present day — the Government
and its subjects. It will be for you to consider how far that
article bears that meaning, and if there is any particular stress
laid upon the expression — ' We have before us direct, palpable
evidence showing how far a selfish ruler is liked by his subjects.'
What is said is this, that it describes the Government as a selfish
ruler, and that this can only be regarded as an attempt to rouse
feelings of hatred, contempt, and disaffection."
With reference to the latter portion of the article, his
lordship said : — ' ' In it there is said to be a simile drawn of
Government as a snake, which is the one of all reptiles regarded
with most abhorrence, and Government, it is suggested, is
compared to a snake and is suggested to be deserving of the
treatment which, according to the article, is accorded to the
snake. There again it will be your duty to consider carefully
what construction you will put on this part of the article, and
you must determine what was reall}^ the intention of the writer
138 THE Law of SED1T10^.
of this article at the time when he penned it in the way he did.
Then I draw your attention to the doctrine laid down in the
latter part of that article — that it is the duty of those to-
whom this article is addressed to strengthen themselves."
His lordship then quoted the concluding passage cited above,
and added, " That in itself is urged upon you to be an incentive
to a spirit of disaffection against the Government as established
by law in this country."
His lordship then dealt with the other two articles charged,
which were much in the same strain, citing characteristic pas-
sages. It is unnecessary here to do more than refer to one of these
passages, which was contained in the second article. It was as
follows : — "If Mr. Rand, who according to public opinion had
become inflated and disdainful by the secret instigation of
Government, had been living now, could it even be imagined
what dreadful deeds he might have committed ? Would it not,
therefore, be desirable to bless the killer of Rand, just as Ram-
chandra earned a blessing from the oppressed people after kill-
ing Ravana ? " In conclusion, his lordship said : — " It is for
you to say whether these articles bear the one constriiction or
the other ; whether they are an attempt to arouse feelings of
hatred, contempt or disaffection towards the Government, or
whether they can be treated as comments expressing disapproba-
tion of the measures of Government or of the administrative
action of Government."
The jury, without leaving the Court, unanimously found the
accused Luxman guilty, and he was sentenced to six months'
simple imprisonment.
In the case against Vinayek the charge was based on the
first two articles referred to above, as well as on the fourth,
which was entitled ^4 w/iite man' a gun and the death of a ' native.^
The last was as follows : — ' ' The frolics of the white boys of the
West have hitherto caused and are now causing the death
of some ' natives,' like that of fishes in a tank. Three days ago
a native was mistaken for a bear and killed. The day before
yesterday another was killed in consequence of a misdirected
aim. Yesterday another was killed because he did not pull
the pankah properly. And to-day one more was killed while
going about the country for a change of ' venue.' Bravo I
THE LATER CASES. 139
you wise soldiers! Government therefore ought to direct their
attention to the fact that ' natives ' meet with death without
any cause at the hands of the white people. When a question
of this kind is asked in ' Parliament ' the ' State Secretary ' says
that from the reply received from the Commander-in-Chief of
India it is clear that such cases occur very seldom indeed, and
that the existing law on the subject is sufficient. Blessed are
the Commander-in-Chief and those w^ho rely on his statements.
A case in which a white man of this very type, named Mr. Ross,
shot with his gun a ' native ' dead at Silchar, has quite recently
come before the Silchar Court. Let us see what takes place.
The conjecture is that the accused will probably be let off with
a fine only. When a white man kills a ' native' he escapes with
a fine, while if a man like Chafekar, moved by solicitude for the
welfare of the world, kills a w"hite man or two he is hanged, and
the natives have to receive an unsolicited certificate from
Government to the effect that there exist treasonable conspiracies
among them, and that the Brahmins have become confirmed
malefactors. Is it to be inferred from this that the scale of jus-
tice is heavier, of that of injustice ? How then was the
method of administering justice during the rule of the Moghals,
or that adopted a century or a century and a half ago by the Sidhi
of Janjira, who declared their will to be the law% worse than
the sort of system of administering justice described
above ?"
In commenting on this article Sir L. Jenkins, C. J., said
that it w as alleged to be "a distinct attack on the administra-
tion, made in order to create feelings of hostility against the
established Government, feelings which the law says must not be
created ; that the article is a covert attack on the Government.' '
His lordship then quoted the concluding lines of the article, and
added: — " That according to the evidence placed before you
would convey to the mind of a Maratha reader a period of mis-
rule on the part of the governing authority. There is a refer-
ence again to the administration of justice adopted a century or
a century and a half ago by the Sidhi of Janjira. That you
have been told by the Oriental Translator to Government, would
convey to the mind of the Maratha readers the suggestion that
the system of British rule was misrule."
140 THE LAW OF SEDITION.
It should be mentioned here that the reference to Mr. Ross's
■case is misleading and inaccurate. Mr. Ross who was a tea
planter in Cachar was committed to the High Court Sessions at
Calcutta by the Deputy Commissioner of Silchar on a charge
of murder. He admitted the act, but his defence, which was
borne out by the established facts, was that he was suddenly
attacked in a dense and solitary jungle by an infuriated mob of
villagers armed with bamboo lathis and ddos. He was felled to
the ground by the blows on his head, and his sun hat or
topee, which was exhibited in Court, was cut through the brim
by a ddo. To save his life he fired his revolver. The jury
unanimously acquitted him, as the plea of self-defence was
obvious.
His lordship then dealt with the other articles charged,
which have been already referred to. The jury found the
accused Vinayek guilty, and he was sentenced to twelve
months' simple imprisonment.
Another important case, which has been frequently referred
to, took place a few years later in Bombay, and is also to be
found in the Bombay Law Reporter. It is the case of Emperor
V. Bhaskar (8 Bom. L. R., 421). The accused was the editor
and publisher of a Marathi newspaper called the Bhala,
published at Poona.
The charge was based on a single article which had
appeared in the Bhala on the 11th October 1905, entitled ".4
Durbar in HellJ'^ This was a long allegorical effusion
published as a contribution from Shri Krishna. It opens
thus: — "Once upon a time a great Durbar was to beheld
in the Empire of Hell. A grand and extensive Mandap was
erected for that purpose. Skins peeled from the corpses of
liuman beings and sewn together foi"med the ceiling of the
Mandap. At various places were posted trunks of human
beings, with their heads cut off like stems of plantain trees,
and many decapitated heads of men were strung together as
garlands in various places in the Mandap. Just as hands,
opened out, are now-a-days painted on wooden boards for
showing the way, so hands actually cutoff were nailed on to the
entrance to each of the prominent parts of the Mandap. In
front of the Mandap a pond containing the blood of those dead
THE LATER CASES. 141
human beings was built fox the purpose of satisfying the vision
of the members with its beautiful colour, and of appeasing their
thirst by a drink of it ; and some of the red water in the pond
was sprinkled on the road leading to the Mandap to lay the dust.
In the interior of the Sabhamandap nude bodies of several beau-
tiful women were placed, in an erect posture, for purposes of
decoration."
In the midst of this picturesque scene ' ' the Emperor of Hell
occupied an exalted throne." When all were assembled "the
Chobdars announced in a loud voice the object of holding the
Dui'bar." They said: — "The present Emperor having become
infirm on account of old age and having no auras heir commands
that a fit person be appointed to rule over his kingdom after
him. To-day's Durbar has been convened to make the selec-
tion."
After this the Emperor of Hell himself addressed the
assembly, and announced the qualifications which he considered
indispensable for succession to his throne. "Cruelty," he said,
" and mercilessness are the principal and necessary qualifica-
tions to qualify one for this throne ; he alone will adorn this
throne who possesses these qualifications in a pre-eminent degree,
and on him alone shall I confer it with pleasure. Therefore
each should nowi describe in detail his own qualifications, so that
the most deserving of you may be selected and crowned."
Thereupon the candidates one by one proceeded to unfold
the record of his atrocities, each in the hope of excelling the other.
It is unnecessary to recount them here. "At last only one
member was left to speak. But none imagined from his attire
that he would prove to be pre-eminent in deeds of cruelty, for
his complexion was most attractive, that is reddish white. His
attire too was very simple. He wore trousers, boots, a coat^
and he had as a head-dress a turban shaped like a mason's
hod. He carried in his hand a cane curved at one end, and he
had in his mouth- a wooden pipe fiom which smoke was issuing.
The member attired as above, got up and began to harangue
as follows : — ' Your Majesty, many persons have till now sung
the praises of their own accomplishments, but all these must
pale before a narration of my qualifications. Your Majesty,
therefore, may be pleased to hear an account of my cruelties.
142 THE LAW OF SEDITION.
In the first place I entered, under the pretext of trade, a
country in which I possessed no rights and with which I
had no connection, and by gradually fomenting dissensions
among the people there commenced to deprive them of their
kingdom. Then I began to assume the authority of a king
by acting on the principle of ' might is right.' I made many
forged documents. I plucked out the teeth of the queens
there and robbed them of their wealth by starving them. I
ruined the money-lenders of that country by confusing docu-
ments and sent them to Hell. Then I became a king and
usurped the kingdoms of many. I robbed all of their indepen
dence. I removed their wealth from there to my distant coun-
try, so that there could be no fear of its coming back. I then
saddled them with different taxes. I taxed their incomes and
also levied an impost upon a commodity which is vital to their
existence, that is salt. I gave them bribes of money and made
them hate their ow n country. Then I deprived them of their
arms, and thus arranged that they should not be able to defend
themselves, even if torn and devoured by wild beasts. I hanged
many of them and ill-treated their women and children. I
consumed kine which are held sacred by them. I held many
Durbars like this, without any reason, and made a parade of my
own greatness thereat, and destroyed their means of subsistence.
I changed the direction of their educational system, and banished
the sentiments of patriotism from their minds, and turned
them into donkeys for bearing loads. By telling them that I
would come to their assistance, I gave the beggar's bowl and
wallet into their hands. I incessantly trod them under my
heels, and made their hunger vanish by systematically pinching
their bellies. I made a bonfire of their lives, their wealth, their
homes, their religion, their reputation, their honour, their in-
dependence and everything else belonging to them. Can there
be any more civilised mode of oppression than this ? I alone
therefore, deserve the throne.' The Emperor of Hell was
highly gratified to hear this speech, and getting up he cordially
embraced that member. He gave three cheers in his name
and said: — ' You alone are fit to conduct this government after
me. You have perpetrated many acts of cruelty up to this
time, and it is only in consequence of this that you have
THE LATER CASES. 143
obtained this kingdom by right; we will, therefore, very shortly
crown you.' "
The accused in his statement to the Court denied the author-
ship of this article, but admitted responsibility for its publication.
This he explained by saying : — ' ' I considered it as only an alle-
gorical and imaginary description of a Durbar held in Purgatory,
referring to no person and to no Government in particular. I
had no intention at the time of its publication of bringing into
contempt the British Government or of exciting feelings of
disaffection towards it." As a proof of his loyalty five other
extracts from his newspaper were put in evidence on his behalf,
and on these he appears to have mainly relied for his defence.
It was contended, in fact, that the loyalty displayed in these
was inconsistent with any evil intention in publishing the other.
For the Crown it was contended that the article in question
spoke for itself. By the last speaker was meant the British
Government, which wasso bad that it was only fit to rule in hell.
The allusions were to incidents in the history of India after the
coming of the English. If this were so then the British Govern-
ment was sought to be brought into hatred.
Justice Batty, in commenting on this article, in his charge
to the jury, said:—" It is entitled 'A Durbar in Hell.' It
has been suggested that the vernacular word used may mean
purgatory, but the surroundings and accessories of the Durbar
and the whole atmosphere of the scene described are diabolical.
You will notice its barbaric cruelty— heads cut ofl^, hands
cut ofi, blood on all sides, and the whole scene one of carnage and
^dendish inhumanity. Then the Emperor of Hell is represented
as about to choose a successor, and the qualifications are said to
be cruelty and mercilessness in a pre-eminent degree. Then
three persons come forward having these characteristics. They
are all described as rulers. Now the accused has told you in his
statement that he took the document as allegorical. Of course^
feelings may be excited as much by allegory and parable as by
direct statement. What we have to find is the key to the alle-
gory, and that is a question exclusively for you. There is the
fact that the three persons brought before you are rulers, and
that the third person is a civilised ruler, and that his dress is
admittedly that of a European. He wears the sun topee or
144 THE LAW OP SEDITION.
head covering which Europeans wear. You will bear in mind
that it is suggested that this description is apparently intended
to identify the third person with British rule, and if you accept
that suggestion, you will next consider whether the representa-
tion is likely to cause feelings of contempt or disaffection in
the minds of those who read papers of this description. You
will observe that the paper is not one that circulates only
among the most educated classes in Bombay, so that you
must consider whether the persons among whom these articles
circulated, are for the most part persons of reasoning power,
and sufficient calmness of judgment and understanding to
avoid the effect which such writing might have on the credulous
and ignorant. Because you may be able to withstand the
writing, it does not necessarily follow that everybody will be in
the same fortunate condition."
' ' Then you will consider,' ' his lordship continued, " whether
it is compatible with the retention of due authority, whether
it be in a home, or as between master and servants or employees,
that the person in authority should be described as diabolical
or as a fit successor to the Kingdom of Hell. And, if such senti-
ments would be subversive of authority in ordinary households,
can you regaid them as more innocuous if entertained towards
the Government of a State ? The prosecution has attempted to
identify the details described with certain public events, with
the Delhi Durbar, the University Act, the Arms Act, the undis-
puted removal of certain sums of money to a distant country,
and lamentable circumstances directly connected with Clive and
Warren Hastings to which Macaulay refers in his essays. If
you think that these references point to a distinct attack,
not merely at individual measures or persons, but upon the
Government of India, then the article comes within the section.
You must remember that the accused edited and published the
paper, inserted the article, and that it was scattered broadcast,
and we learn the paper acquired through this article a consider-
ably increased circulation."
The jury found the accused guilty, and he was sentenced to-
six months' simple imprisonment and a fine of one thousand
rupees.
THE LATER CASES. 145
Another case of some importance which has also been fre-
quently referred to, is that of Apurba Krishna Bose v. Emperor
(35 Cal., 141). The accused, who was the printer of the Bande
Mataram, a daily newspaper published in Calcutta, had been
convicted by the Chief Presidency Magistrate of sedition, and
moved the High Court for revision of the order. The editor and
the manager of the paper, who were tried along with him for the
same offence, had been acquitted.
The principal article on which the conviction was based
was entitled ' Politics for the Indians,'' and was as follows : —
"Methinks the time is approaching when the world will refuse
to believe that the same race of Englishmen were instrumental
in the abolition of the slave trade. Mr. Morley has said that we
cannot work the machinery of our government for a week if
England generously walks out of our country. AVhile this sup-
position is not conceivable, did it not strike Mr. Morley that, if
instead of walking out, the English were by force driven out of
India, the government will go on perhaps better than before,
for the simple reason that the exercise of power and organisa-
tion necessary to drive out so organised an enemy will, in the
struggle that would ensue, teach us to manage our own affairs
sufficiently well 1 The Government is fast becoming a Gov-
ernment of the evil genii, ' oppressive as the most oppressive
form of barbarian despotism,' yet strong with all the strength
of organisation and the sinews of war, if not with all the
strength of civilisation. It was the same evil genii Mho
destroyed Hindu images and ravished Hindu women at
Jamalpur and Mymensingh, to strike terror into the hearts of
those who advocated the use of country made goods. It was the
same evil genii who are now terrorising the advocates engaged
in defending the accused at Eawal Pindi. It is high time for
the Government to calmly look on the heavy exports of grain
from the country, exposing the children of the soil to an eternal
state of chronic starvation. We have heard of the Mahomedan
mandate of the sword or the Koran. Perhaps some day the
/iat will go out that British goods or the sword are the only two
alternatives between which we have got to choose."
The rule was heard by Justice Caspersz and Justice Chitty^
who in commenting on this article said : — "The article is in the
D, LS 10
146 THE LAW OF SEDITION.
form of an unsigned letter, but it does not appear in the corres-
pondence columns. There is no heading or foot-note that the
editor does not accept responsibility for the opinions expressed
in the letter." The learned Judges would appear to have
overlooked the fact that the editor was not before them.
The editor, as already mentioned, had been acquitted. It was
the printer who moved the Court, but it is difficult to see how
the presence or absence of such a "heading or foot-note" could
affect his position.
The observation, further raises the question, which unfor-
tunately remains undecided, whether an editor can get rid of his
responsibility for the publication of seditious matter by the in-
sertion of a "heading or foot-note' ' of this description. It would
certainly be strange if he could.
" The comments in the letter," their lordships continued,
' ' are incompatible with the continuance of the Government
established by law. Reading the article, as we have read it,
for the first time, we think the comments on the slave trade,
the evil genii, and the alternatives of British goods or the
sword, and the reference to His Majesty, the King-Emperor,
and the tone, generally, of the production, are not within the
explanations to section 124A." The learned Judges doabtless
refer to the second and third explanations.
"Such writings," they added, "are calculated to bring
the Government into hatred and contempt. It may be said
that these are words of emotional exaggeration. It may be said
that ' Politics for Indians ' was based on imperfect telegraphic
intelligence. But the duty of every citizen is to support the
Government established by law, and to express with moderation
any disapprobation he may feel of the acts and measures of that
Government." The Rule was discharged and the conviction
and sentence affirmed.
An important trial for sedition took place in 1908 at the
High Court Sessions in Calcutta. The case, which has been
already referred to in a previous chapter, is entitled Emperor
v. Phanendra Nath Milter (35 Cal., 915), otherwise known as the
* Jugantar case.' The accused was the printer of a vernacular
newspaper, published in Calcutta, called the Jugantar. It was
in evidence that he had signed a declaration as such under Act
THE LATER CASES. 147
XXV of 1867 (see Appx.), which he had withdrawn on a subse-
quent date, but not before the publication of the articles iu
question. The articles are not set out iu the report of the case,
but their purport can be gathered from the learned Judge's
■charge to the jury, which contains a selection of the characteris-
tic passages.
Justice Rampini, A. C. J., in commenting on the three
articles charged as seditious, said: — "In the first article,
' Death ivished for,' it is written, — ' The extensive undertaking
which we have begun for making our country independent. The
hand of him who shrinks from uselessly shedding blood will
tremble at the time of usefully shedding blood.' Finally, the
article goes on, — ' So long as we shall not be fit for entering
into this field of devotion, so long shall we have to practise
useless shedding of blood, so long the^'play of this sort of fruit-
less death will havejto be played.' Then on the next page there
is a passage at the end of the first paragraph which is very signi-
ficant. It is as follows : — ' But the restless youth, who has for
many days wandered about restless, aiming at the life of the
enemy of his country with the object of removing him altogether,
the hopeless fellow, who' has run into the jaws of death as the
result of failure, why do not the tears of sympathy of the people
of the country keep his memory alive ? Why does his conduct
get soiled by the stigma of rebellion? If self -destroyer and
self-offerer be the epithets applied to rebels and heroes, res-
pectively, where then lies the difference between them V Then
in the second paragraph it is said, — ' "Whom have we placed in
the van of the preparations for an expedition against the ruling
power, which we have recently made ?' Then the article says, —
' Those sons devoted to the mother, who in going to proclaim
the truth of their hearts, have in a clear voice denied the exist-
ence of the King, who is a foreigner, who have gone the way to
death enchained by,' etc. Finally, at the top of page 3 is the
following, — ' A call to death is now being sounded. Let nobody
remain indifferent any longer, let those who know how to die,
lead the van in this party of pilgiims. So long as the prepara-
tions for the work of war are not complete, so long will you
have to die in vain. There is no help for it, even if the shaft
levelled at the foe hurts the breast of the innocent."
148 THE LAW OF SEDITION.
" The next article," his lordship continued, " which is the
subject of the charge, in paragraph 2, says, — ' These untold
self-sacrificing, firmly resolute, heroic, self-restrained young men
afraid of dharrna, who in the opening days of the year 1315,
having staked their lives in an attempt to remove the sorrows
and the unhappy lot of the country, have to-day fallen into the
grasp of the Firingee, through the efforts of the traitor, have
been born again and again in order to establish the kingdom of
righteousness in India.' lu the third paragraph is the passage
beginning with, — ' The rod of Providence has been uplifted in
order to destroy the Mlechchha kingdom.' I forgot to ask the
translator the meaning of the word Mlechchha. But it means
an outcast. It is often applied to foreigners. Anybody who
is outside the pale of the Hindu religion is a Mlechchha.'''^
" The last article," his lordship went on to add, "which
is the subject of the charge, is entitled ' Conspircicy or desire for
freedom." It is probably the worst article of the three. It
says — ' The word conspiracy is very ugly, and implies meanness.
It is only a secret plot against the King which is called
conspiracy. Did the prisoners in Calcutta get up a plot against
the King in secret ? surely not. A secret effort or endeavour
for gaining independence cannot be called a conspiracy. And
the English, again, are not the rulers of this country. Nobody
can take as a conspiracy the attempt or expedition against one
who is not the king, but a robber, a thief, a barbarian, an
uncivilised person, and an enemy of India.' Then it winds up
by saying the English are demons, and hence they are
thwarting these intelligent persons in the performance of that
meritorious act. We really want independence. India is not
the Englishman's paternal property. The Englishman is
nobody to this country. The thirty crores of the people of
India ought, for the good of the entire mankind, to destroy
them immediately, like Kavan's dynasty."
"Then the otherj articles," his lordship added, "which
are not the subject of the charge but only put in and printed
to show the intention of the person who printed and published
the articles which are charged. 'A call ' contains the passage, —
' Arise people of this country. You are not weak, we welcome
you in a loud voice. Let us fulfil the long cherished desire of
THE LATER CASES. ' H9
the earth with the warm blood of this unruly race, who are given
to dancing violently like demons. Do not remain asleep any
more. India shall be independent. Eise people of India,
arise.' The next article ' What is harharity'' is not of very much
importance. But the last paragraph of the next article ' Tram-
ple doivn the enemy ' is very significant, — ' If in the attempt to
destroy the enemy a woman is accidentally killed, then God
can have no cause for displeasure, like the English. Many a
Putana must be killed in the course of time in order to extirpate
the race of Asuras from the breast of the earth. There is no sin
in this, no mercy, no affection.' The next article entitled ' Who
is the rebel?' says, — ' Inhuman oppression is being committed
on Aurobinda Ghosh and others. Are they rebels ? None of
them are rebels. They are entitled according to the very
canons of justice to rise against the English. The English are
strong and they are weak. This is why they are entitled to
collect arms in secrecy. It is with secrecy that arms have to
be collected in order to kill an enemy.' "
In conclusion his lordship said : — " These are the articles,
the first three of which are the subject of the charge. It is for
you to say whether you consider that they were meant to excite
hatred, contempt, or disaffection towards the Government of
this country. You have only to look to these articles and to
say whether they are seditious or not, or whether they preach
war and invite the people to rise against the Government of the
country and to take steps for entering into revolution."
The jury found the prisoner guilty, but it does not appear
from the report what sentence was imposed.
CHAPTER XIV.
THE LATER CASES — COUld.
The year 1908 appears to have been unusually prolific im
sedition cases throughout India, only a few of which came before
the High Courts. Two important cases in that year came up
on appeal, the one in Madras and the other in Calcutta. These
w-erc the cases of Chidambaram Pillai v. Emperor, and Leahit
Hossein Khan v. Emperor. They have been fully discussed in'
a previous chapter (see Ch. xii).
In the year 1909 the case of Emperor v. Ganesh Bamodar
Savarkar (34 Bom., 394), came before the Bombay High Court,
The accused had been convicted by the Sessions Judge of Nasik,.
of sedition under section 124A, and also of abetting the waging
of war under section 121 of the Penal Code. He was sentenced
to two years' rigorous imprisonment for the first offence, and
to transportation for life for the second.
The charges were based on four poems, selected out of a
series of eighteen and published in a book entitled Laghu Abhi-
nava Bharata Mala or a 'Short Scries for new India.' At the
hearing of the appeal it was contended for the appellant that
aone of the four poems which were the subject of the charges
bore the character assigned to them. On this Justice Chanda-
varkar said : — " On examining the series of poems in the book,
exhibit 6, containing the four poems, it appeared to us that there
were other poems in it besides those four, which threw light on
the intent of the writer, and that as the whole book had been
allowed in the lower court to go in as evidence without ary
objection, all the poems in the book could be referred to for the
purpose of determining the intention, character, and object of
the poems selected as the basis of the charges against the appel-
lant in the lower court. We adjourned the hearing for an
official translation of the whole series of poems in the book intO'
English, and also to enable the appellant's legal advisers to argu&
the appeal with reference to the bearing of the whole series on
the poems forming the subject-matter of the charges."
THE LATER CASES. 151
In commenting on the character of the poems, the learned
Judge said : — ' ' It is true that the writer has chosen either my-
thological or historical events and personages, but that is for the
purpose of illustrating and emphasising his main thesis that
the country should be rid of the present rule by means of the
sword. The innuendoes cannot be mistaken or misunderstood.
For instance, the 5th poem purports to refer to the destruction
of ' foreign demons' by Rama, Krishna, and Shivaji. Bat that
it is not a mere description of the past but is meant to be a covert
allusion to the British is apparent from the frequent use of the
term ' black,' referring to the people of this country. Any one
can see that the frequent play upon the word 'black' is intended
as a contrast to the word ' white,' and the implication is that the
' black' are ruled by the ' white,' and that the latter will and must
be killed by ' a black leader of the black.' So also as to the next
poem, No. 7. Under the guise of an invocation or prayer to
Ganesh, the god who, according to Hindu belief, destroys evil,
the writer calls upon him to take up the sword and be ready for
war, because ' the demons of subjection have spread lamenta-
tion all over the world.' The 'demons' are characterised as
' dissembling, notorious, treacherous, cut-throat.'
"The 9th poem," the learned Judge continued, "which
is headed ' Who obtained independence without war ?' winds
up with this remark : ' He who desires Swarajya (one's own
rule) must make war.' The 17th poem professes to be a ' prayer
of the Mavlas to the god Shiva,' but one can plainly see that
the sting of the verses lies in the covert allusion to the present
rulers of British India. The translation of the poems into Eng-
lish brings out the sting clearly enough, but to those who know
Marathi, who can either sing or understand the poems sung,
the venom is too transparent to be mistaken for an5rthing else
than a call to the people to wage war against the British Govern-
ment."
In conclusion, the learned Judge said :— ' ' A spirit of blood-
thirstiness and murderous eagerness directed against the Gov-
ernment and ' white ' rulers runs through the poems : the ur-
gency of taking up the sword is conveyed in unambiguous lan-
guage, and an appeal of blood-thirsty incitement is made to the
people to take up the sword, form secret societies, and adopt
15i: THE LAW OP SEDITION.
guerilla warfare for the purpose of rooting out ' the demon ' of
foreign rule."
in commenting on the same poems, Justice Heaton, after
an exhaustive analysis of the whole series, concludes with the
following description of the book. " Briefly summarised, the
teaching of this book is that India must have independence ;
that otherwise she will be unworthy of herself ; that independ-
ence cannot be obtained without armed rebellion, and that
therefore the Indians ought to take; arms and rebel. This is
quite plain, though the teaching is thinly veiled by allusions
to mythology and history. It is sedition of a gross kind, and
very little attempt was made to show that the conviction under
section 124A of the Indian Penal Code was not correct."
The conviction and sentences were affirmed and the appeal
dismissed.
In the year 1910 a group of four cases connected with a
local vernacular newspaper called the Rang pur Bartabaha came
upon appeal before the High Court of Calcutta. In the first of
these (No. 509 of 1910) the appellant, Joy Chundra tSirkar, was
the proprietor and editor of the paper in question. He had
been convicted for sedition under section 124A of the Penal Code
by the Di.strict Magistrate of Rungpur, and sentenced to two
years' rigorous imprisonment. He had also been convicted at
the same trial for promoting class hatred under section 153A,
and sentenced for this to one year's rigorous imprisonment.
A separate appeal had been filed against this conviction to the
Sessions Judge of Rungpur. The High Court, however, to dis-
pose of the whole case, transferred this appeal to themselves and
the two appeals were heard concurrently. The three articles
charged as seditious were named Pratikar (redress of grievances) ;
Bijoya (a hymn to Durga) ; and Sipahir Katha (the talk of Se-
poys). Six other articles which had appeared in the same paper
about the same time, were also relied on by the Crown to prove
animus, and to throw light on the meaning of the others. One
of the learned Judges who heard the appeal had the advantage,
as in the Bombay case last mentioned, of being able to test the
accuracy of the translations, on which the prosecution relied,
and found them in many places incorrect, overcoloured, and
misleading.
THE LATER CASES. 153
After au analysis of these inaccuracies, some of which.
were found to be 'absurd' and others 'perverse,' Justice
Chatterjee proceeded to deal with the articles in question,
asloTTows : — "Going into details upon the three articles, I
find there is absolutely nothing objectionable in the article
' Bijoya.' It is the rhapsody of a devout heart on the termina-
tion of the religious festivities of the Durga Puja. The goddess
is invoked not to inflict calamities like the cyclone of October
last on the country, but to come next time in her world fascinat-
ing Durga form, i.e., with the goddess of wealth and learning,
with the gods of protection and success surrounding her. It
deplores the degeneration of faith, and calls upon her to give
them the power of writing in her worship without any malice
or malevolence. The key to the seditious trend is found in the
word para- pad a-dahita as a description of the sons of Bengal.
Literally the words mean ' trampled under feet of others ;
it really signifies a conquered nation and the figure of speech
used is immaterial. Reading the article now with the light
of the comment of the learned Magistrate and the learned
Counsel for the Crown I am unable to consider that this article
was an incitation to the people to unite for overturning the
British Government, and the article ' Anandamoyir Agamone '
does not throw much adverse light."
" The same thing cannot, however, be said of the other two
articles. Although the sense is consideiably disfigured by the
mistranslations, there is one idea clear as running through the
two articles, that the Government does not care for ascertaining
the real truth about grievances which exist, especially about
the administration of justice. The first article,, the Pratikar,
says that, bribery in some form or other is rampant in Courts of
Justice, barring of course the Judiciary \vho are beyond suspi-
cion and therefore poor. The writer, therefore, prays that a se-
cret commission might be appointed by Government for investi-
gating the truth of the allegations, and asks the society to ex-
communicate such ignoble bribe-takers. The sting of the article
however, lies, according to the prosecution, in the concluding
statement that ' Englishmen will laugh at such a request (for a
commission to inquire into the bribery prevalent in courts, etc.).
15i
THE LAW OF SEDITION.
and say ' these people are so worthless that they expose the fail-
ings of their own countrymen to the scrutiny of others.' butj
the writer says, ' You have laid such a trap that we must dis-
regard all questions of dignity and honor and fall into them, you
are the teachers we are the disciples.' Literally read the word
' trap' as applied to a jiidicial system is objectionable, but strip-
ped of the figure of speecli it means a complicated system, and
the writer means that people cannot help giving bribes, because
otherwise they would not have their work done at all or done
promptly."
" The next article," the learned Judge continued, " is the
'Sipahir Katha.' This article contains a severe diatribe against
Swadeshi agitators of lawyer class." " To my mind the article is
intended to expose the so-called Swadeshi agitators, and con-
demn not only their methods of boycott and terrorism, but also
the insincerity of their professions of brotherhood to those whose
blood in the shape of hard earned money they are said to be
sucking and feeding themselves fat upon." " The sin, how-
ever, of these two articles is that they impute wholesale bribery
to the ministerial officers of courts and to the lower officers of
the Police force, and express grave doubts as to whether Govern-
ment ever enquire into the truth of the grievances, so much i»
it occupied with investigation of boycott, dacoity, and seditious
matters. If these aspersions have the effect of bringing into
hatred or contempt the established Government of the country,
or serve to create feelings contrary to affection to the Govern-
ment we need not stop to enquire whether any part of them is
true. To my mind these aspersions against the Government
may have the effect of making the people think that the Govern-
ment is not doing its duty, and is not therefore a good Govern-
ment. I think, they go beyond fair comment, and written at a
time when seeds of sedition are being sown broadcast, and the
minds of people are under excitement, they cannot be taken to
have been actuated by honest and loyal motives. I think, there-
fore, that under the circumstances of the case the conviction of
the prisoner under section 124:A is right. The articles are, how-
ever, more or less crazy and the sedition is only indirect, and I
think a sentence of six months' rigorous imprisonment will serve
the ends of justice."
THE LATER CASES. 155'
In regard to the same articles Justice Richardson concur-
ring pronounced the following opinion : — ' ' In regard to the
article ' Bijoya' the only word to which objection can fairly
be made is ' parapadadahita' (trodden under the feet of strangers),
Avhich if intended to be so applied is not a just description of the
condition of the people under the Crown. But in the context
in which it occurs, I agree that this one word is not sufficient to
make the article seditious. No doubt references to demons^
whether they be the allegorical demons of passion, or the em-
bodied demons of mythology, sometimes cover attacks of a
political character. But if a particular article is charged as
being seditious on the ground that it says more than appears
on the face of it, it is, of course, the duty of the prosecution to
show that it has in fact the guilty meaning or intention^
attributed to it. In the present case the proof of any such
intention appears to fall short."
" As to the articles ' Pratikar' and ' Sipahir Katha,' " he
added, " I agree that the sweeping and unqualified character
of the imputations which they make against the administration
of affairs in this country leaves no doubt that they were intended
to stir up feelings of disaffection towards the Government
established by law, and that in respect of these two articles the
conviction of the appellant under section 124A of the PenaL
Code should be affirmed."
In the next appeal (No. 497 of 1910) the appellant Surendra
Prosad Lahiri was the printer of the same paper, and had been
convicted under the same sections of the Penal Code and sen
tenced to six months' rigorous imprisonment for each offence*
The learned Judges in disposing of this appeal said: — "The
prisoner was the declared printer of the Rungpur Bartabaka,
and he has been convicted of offences under sections 124 A and
ir)3A of the Indian Penal Code in respect of the same articles
Pratikar, Bijoya, and Sipahir Katha in respect of which the edi-
tor Joy Chandra has been convicted. We have held in the
appeal of Joy Chandra that the article Bijoya is harmless, or at
all events not seditious, but that the articles Pratikar and Sipahir
Katha are seditious, in the sense of containing wholesale denun-
ciations of the administration of justice in India. The prisoner,
being the declared printer, would be responsible for the said
156 THE LAW OF SEDITION.
articles, unless he can make out on sufficient evidence that he
had in fact nothing to do with them. The Pratikar appeared
on the 10th of September 1909, and the Sipahir Katha on the
20th of November 1909. The learned Magistrate finds on the
evidence that he was absent from Rungpur on these days, and
it is argued that the knowledge of these articles must therefore
be brought home to him before he can be convicted. It appears
that he did not take any interest in the paper, and was occupied
in his own business as a photographer and general dealer. But
he allowed his name to remain on the record as the printer, and
we think, he has not made out th.e bona fides of his absence from
Rungp7ir. He is, therefore, legally guilty under section 124A,
and we confirm the conviction. In consideration, however, of
his expressed intention to sever his connection with the paper
we reduce his sentence to what he has already suffered."
In a more recent appeal before the High Court of Calcutta
(No. 744 of 1910), the appellant Mon Mohan Ghose, who was the
printer and publisher of a newspaper called the Karmajogm,
had been convicted under section 124A of the Penal Code and
sentenced to six months' rigorous imprisonment by the Chief
Presidency Magistrate. The charge was based on an article
entitled "To my Countrymen," which purported to be "an
open letter addressed by one Arabindo Ghose to his country-
men," and which had appeared in the issue of the 25th
December 1909.
At the hearing of the appeal it was sought to interpret this
article by reference to two other articles which had prev^iously
appeared in the same paper on the 24th and 31st July. This
was disallowed, for reasons which have already been discussed
in a previous chapter (see Ch. x), and the decision was accord-
ingly based on the article itself. The main features of the case
appear in the judgment of Justice Fletcher, one of the learned
Judges who heard the appeal, which was delivered on the 7th
November 1910.
After citing the observations of Justice Strachey in
Tilak's case on the limits of fair comment in journalism
(seeCh. a;), the learned Judge proceeded to analyse the article in
question in the following terms: — "Now the first words that
the learned Advocate-General has laid stress upon is the call to
THE LATER CASES. 157
the Nationalist party to ' once more assume tlieir legitimate
place in the struggle for Indian liberties.' This, it is said, is a
clear invitation by the writer to his countrymen to join in a
movement having for its attainment the liberation of India from
foreign rule. But, in my opinion, the words standing alone are
capable of a much more innocent meaning. The use of the word
'' liberties,' in the plural, would not prima facie point to the
liberation of the country from foreign rule, but to certain specific
liberties ; and this view appears to be supported by the subse-
quent portion of the article, where the writer sets out what the
demand of the Nationalist party must be, viz., an effective
voice in legislation and finance, and some control over the
Executive.
" The next portion of the article on which the learned Ad-
vocate-General laid stress is the portion, ' The survival of moder-
ate politics in India depended on two factors, the genuineness
Oi the promised reforms, and the use made of them by the con-
ventionists of the opportunity given them by the practical
suppression of Nationalist public activity. Had the reforms
been a genuine initiation of constitutional progress the moder-
ate tactics might have received some justification from events.
The reforms have shown that nothing can be expected from per-
sistence in moderate politics, except retrogression, disappoint-
ment and humiliation.' The argument put forward on this part
of the article is that the statement that the reforms are not
' genuine,' or a ' genuine initiation of constitutional progress'
holds the Government up to hatred and contempt as implying
that they have given the people something that is not 'genuine.'
To my mind this is a far-fetched argument. The writer was
obviously entitled to express his opinion on the Reform Scheme,
and the mere fact that he states that the scheme is not a genuine
reform or not a genuine measure of constitutional progress cannot
be seditious. But then it is said that the statement ' that no-
thing can be expected from persistence in moderate politics, ex-
cept retrogression, disappointment, and humiliation,' followed
subsequently by the words ' discomfited and humiliated by the
Government' — are obviously seditious, as the words mean that
the Government has humiliated a large portion of the peopla^
viz., the moderate party, and therefore the statement brings
158 TUE LAW OP SEDITION.
the Government into hatred or contempt. It is obvious that
this is not the natural or ordinary meaning of the words. The
Natural meaning is that the moderate party has been humiliated
by accepting the Reform Scheme, which is not a measure of ' con-
stitutional progress.' Then a portion of the article was relied
upon as showing that the writer was advocating that violent
taethods should be used if necessary. The words are ' If the
Nationalists stand back any longer either the National movement
will disappear, or the void created will be filled by a sinister and
violent activity.' But that the intention is not such is shown
by the sentence that immediately follows : — ' Neither result can
be tolerated by men desirous of their country's development and
freedom.'
' ' The learned Advocate-General next referred us to the fol-
lowing parb of the article : — ' The fear of thi law is for those who
break the law. Our aims ajc great and honorable, free from
stain or reproach Our methods are peaceful, though resolute
and strenuous. We shall not break the law, and therefore we
need not fear the law. But if a corrupt police, unscrupulous
officials, or a partial judiciary make use of the honorable publi-
city of our political methods to harass the men who stand in front
by illegal, suborned, and perjured evidence, or unjust decision
shall we shrink from the toll that we have to pay on our march
to freedom. We must have our associations, our organisations,
our means of propaganda, and if they are suppressed by arbitrary
proclamations, we shall have done our dutj- by our motherland,
and not on us will rest any responsibility for the madness which
crushes down open and lawful political activity, in order to give
a desperate and sullen nation into the hands of those fiercely
enthusiastic and unscrupulous forces that have arisen among
us, inside and outside India.' The argument on the first part
of this paragraph is that, as the Government appoint the police
officials and judiciary, to describe them as corrupt, unscrupulous
and partial, reflects upon the Government and brings it into
hatred and contempt. But though the words used are such
that we may strongly disapprove of, I am unable to see that
the words taken in their context necessarily bear this meaning.
The first portion of the paragraph states that the movement is
to be a movement within the law, and then follows the sentence
THE LATER CASES. 159
commencing ' But if ' — which words clearly govern the sentence
which follows.
" It seems to me reasonably clear that the writer does not
intend to designate all the police, officials, and judiciary as cor-
rupt, unscrupulous and partial. It is also to be remembered
that the article is not one written on the police, officials, or
judiciary. Although one may regret the use of such words, I
cannot bring myself to believe that the use of these words, in
the context in which they are used, falls within section 124 A of
the Indian Penal Code.
' ' The other three expressions in the paragraph which have
been dealt with are the expressions ' arbitrary proclamations,'
'madness,' and a ' desperate and sullen nation.' It is very ob-
vious that the expression 'arbitrary proclamations' coupled
with the word ' associations ' points to proclamations under the
Criminal Law Amendment Act suppressing associations. I
take it, however, that there is no particular harm in a writer
stating that if his association, which he believes to be a lawful
one, is suppressed, the proclamation will be arbitrary. It is
difficult to deal seriously with the other two expressions ' madness '
and a ' desperate and sullen nation.' That the first of these
two expressions charges the Government with insanity cannot be
argued. It is said, however, that the meaning of the word as
used is that of recklessness, and therefore falls within section
124A. The word, however, is clearly used to indicate an act of
folly which, in the context, is clearly innocuous. Similarlv with
regard to the expression a ' desperate and sullen nation.' The
learned Advocate argued that these words are seditious, as im-
plying that the Government had made the nation desperate and
sullen, and therefore brought the Government into hatred and
contempt. But if arguments of this nature are assented to the
right of comment on the action of Government given by law
would be wholly taken away.
" Then we come to what the writer states is to be the de-
mand of the Nationalist party. ' We demand, therefore, not the
monstrous and misbegotten scheme which has just been brought
into being, but a measure of reform based upon democratic
principles — an effective voice in legislation and finance, some
check upon an arbitrary executive. We demand also the wra-
160 THE LAW OF SEDITION.
dual devolution of executive Government out of the hands of
the bureaucracy into those of the people. Until these demands
are granted we shall use the pressure of that refusal of co-opera-
tion which is termed passive resistance. We shall exercise thaf
pressure within the limits allowed us by the law, but apart from
that limitation the extent to which we shall use it depends on
expediency, and the amount of resistance we have to overcome.'
"The argument for the Crown is that the use of the words
' monstrous and misbegotten scheme' as applied to the Reform
Scheme, hold the Government up to ' ridicule and vituperation.'
But that does not appear to me to be the natural consequence
of these words. Doubtless the words are a strong condem-
nation of the Reform Scheme framed by the Government.
The law, however, permits comments on action of the Gov-
ernment provided, they do not bring the Government into
hatred or contempt or promote disloyalty. A statement that
the Reform Scheme is monstrous and misbegotten, because it is
not founded upon democratic principles is not by itself one that
exceeds fair and reasonable comment. The next words that
the learned Advocate-General much relied on were the words
' Arbitrary Executive," which he stated were ' sufficient of them-
selves to contravene the law.' He argued that any constitutional
lawyer would know that the Executive Government of India
was not an arbitrary Executive, as no person is liable to be de-
prived of his liberty, or to have his property forfeited without
recourse to the courts of law. In the first place, however, it is
to be noticed that we must look at the words used by the writer
not as if he were a constitutional lawyer, but as a writer in a jour-
nal. I quote from the very pertinent remarks made by Strachey,
J., in charging the Jury in Tilak's case : — ' A Journalist is not
expected to write with the accuracy and precision of a lawyer or
a man of science ; he may do himself inj ustice by hasty expres-
sions out of keeping with the general character and tendency
of the articles.' Moreover, there is a more general and popular
meaning to the words ' arbitrary executive ' than that given by
the learned Advocate-General. Further, if the definition given
by the learned Advocate is correct, it may be a matter of opi-
nion how far the Government does or does not fall within that
definition.
THE LATER CASES. 161
" The next expression to which exception was taken was
' passive resistance.' The writer has, however, defined it
himself as being ' refusal of co-operation within the limits allow-:
ed us by the law.' It seems difficult to deduce a seditious mean^
ing from this phrase. But then it is said that although the
writer states that the pressure is to be used within the limits
allowed by the law, yet there is a covert threat to use pressure
outside those limits if necessary. All I can say on this argu^
ment is that I have not been able to discover this covert threat
from the words used.
' ' The next and last part of the article which the learned
Advocate-General has called our attention to is — ' The move-
ment of arbitration .successful in its inception has been dropped
as a result of repression. The Swadeshi Boycott movement still
moves by its own impetus. We must free our social and eco-
nomic development from the incubus of the litigious resort to
the ruinously expensive British Courts.' The learned Advo-
cate-General stated that the expression ' Swadeshi Boycott '
referred to a boycott of the Government. But it is a matter
of public kuovfledge that it refers to a boycott of foreign
goods ; and again he laid stress upon the expression ' ruinously
expensive British Courts.' The question as to the expense
involved in litigation before the Courts is surely a matter on
which a writer is entitled to comment. This is not the first
time, nor will it, I imagine, be the last when the Courts will
be described as ruinously expensive, and I cannot see how
such a statement can come within section 124A."
In conclusion, the learned Judge said : — " I have now dealt
with the arguments that have been made before us, in detail,
on the article, and I have given the best consideration I can to
the article as a whole, and I have come to the conclusion that
it does not appear from the article that it is such as is likely to
cause disaffection or produce hatred or contempt of the Govern-
ment, nor can I find from the article that such was the intention
of the writer. Doubtless to many, if not to most people, the
writer's view of the great Eeform Scheme would appear to be
unreasonable, and one that does not recognise the great advance
that has been made. But with that we are not concerned-
162 THE LAW OF SEDITION.
All that we have to decide is whether the law, as it is, has or has
not been broken by the appellant, by the publication of this
article, and I have come to the conclusion that it has not. The
learned Advocate-General has pressed upon us strongly to take
into consideration the state of the country at the time this article
was published. The authorities show that that is a matter to be
taken into consideration, but that obviously does not entitle
the Court to convert an article not falling within the mischief
aimed at by section 124A into one that does. In my opinion
the appeal ought to be allowed, and the conviction and sen-
tence set aside."
CHAPTER XV.
COGNATE OFFENCES.
Promoting class-hatred, though treated in the Indian
Penal Code as a distinct oSence, is, and has always been, a part
of the English law of sedition (see Ch. ii). WTien the law of
sedition was first formulated in 1870 and introduced into the
Penal Code as section 12'iA, no such provision was in contem-
plation, but in 1897 when the law was about to be amended,
the want of such a measure was recognised. It was then
decided to embody the provision, in accordance with the English
law, in the amended section, and the Bill when first drafted
included it as a part of the law of sedition. This has been
already pointed out in a previous chapter (see Ch. vii).
The Hon'ble Mr. Chalmers, when introducing the Bill
on the 25th December, said : — ' ' Subject to one possible
exception, our proposed new section in no wise alters the
law at present in force in India. The possible exception con-
sists in the provision that it amounts to sedition to promote or
attempt to promote feelings of enmity or ill-will between
different classes of Her Majesty's subjects. The question has
not been raised or decided whether such conduct amounts to
an offence under the present section 124A. But the proposed
addition is law in England, and if such a rule be required in
England with its practically homogeneous population, it is
still more requisite in India where different races and religions
are in continual contact. For the most part under British
rule our Muhammadan and Hindu fellow-subjects live to-
gether in peace and amity, but recent agitations in various parts
of India have shown how dangerous to the public tranquillity
is any agitation which seeks to fan into flame those feelings
of racial and religious antagonism which still smoulder beneath
the surface."
The Bill was then referred to a Select«Committee. Among
the changes effected by the Select Committee one of the
most important was the removal of this provision from section
164 THE LAW OF SEDITION.
124A to another part of the Code, where it now occupies an
independent position as a distinct ofience. The reasons for
this change are stated in their Report of the 4th February
1898, as follows : — " We have omitted the words ' or promotes
or attempts to promote feelings of enmity or ill-will between
difierent classes of Her Majesty's subjects,' and have framed a
new clause to deal with the ofience thereby indicated. It appears,
to us that the offence of stirring up class-hatred differs in many
important respects from the offence of sedition against the State.
It comes more appropriately in the chapter relating to offences-
against the public tranquillity. The offence only affects the
Government or the State indirectly, and the essence of the
offence is that it predisposes classes of the people to action
which may disturb the public tranquillity. The fact that this
offence is punishable in England as seditious libel is probably
due to historical causes, and has nothing to do with logical
arrangement." "But," they added, '" in framing the clause we
have altered the words ' enmity or ill-will ' into ' enmity or
hatred,' and we have fixed the maximum punishment at two
years' imprisonment." The word ' ill- will' was thought to be
' ' too wide and vague ' ' in its meaning, and therefore unsuit-
able for either section.
When the Council met on the 18th February 1898, for the
final consideration of the Bill, the Hon'ble Member in charge
alluded to the changes which had been made as follows : —
" We have removed the ofience of stirring up class-hatred from
the sedition clause, and have inserted it in the chapter relating
to offences against the public tranquillity. This offence, no
doubt, only affects the State indirectly. It affects the State
through the danger it causes to the public tranquillity. It ia
less akin to treason than a seditious attack upon the Govern-
ment by law established, and therefore we have provided a
much smaller punishment. But in India the offence is a very-
dangerous one. When class or sectarian animosity is directed
against any section of Her Majesty's subjects, the members
of that section are in peril. Any accidental event may cause
an explosion, and it 4s difficult to foresee the direction which
the explosion will take. The persistent attacks made on the
cfficers and helpers engaged in plague operations have already
COGNATE OFFENCES. 165
resulted in sad loss of life. A squabble over an alleged mosque
gave rise to a dangerous riot which, at one time it was feared might
turn into a general attack on the European community in Cal-
cutta. We wish to trust to prevention rather than cure, and by-
taking power to punish people who foment class animosities to
obviate the necessity of putting down the consequent distur-
bances with a high hand."
" But," he added, " though we think and believe that
the measures we have proposed are necessary, we have provided
■safeguards against any possible abuse of them — safeguards
which, I may observe, are unknown to English law. As
the law now stands, no prosecution under section 124 A can
be commenced without the authority of the Local G-overnment
or the Government of India. We intend to maintain that rule,
and further to apply it to offences under sections 153A and
505. Ther§ remain the rights of appeal and revision. Every
sentence passed under the provisions I have referred to can
be brought in one form or the other under the cognizance of
the High Court."
On this occasion also a further amendment was intro-
duced. The ' Explanation ' to the section, the principle of
which is borrowed from the English law of sedition, was added
at the instance of Sir Griffith Evans. The Bill was then passed
as Act IV of 1898, and the new provision took its place in the
Penal Code as section 153A.
The new section was as follows : —
" 153A. Whoever by words, either spoken or written,
„ ,. . or by signs, or by visible representations, or
Promotintr enmity iu •
between classes. otherwise, promotes or attempts to promote
feelings of enmity or hatred between
different classes of Her Majesty's subjects shall be punished
with imprisonment which may extend to two years, or with
fine, or with both.
Explanation. — It does not amount to an offence within the
meaning of this section to point out, without malicious inten-
tion and with an honest view to their removal, matters which
are producing, or have a tendency to produce, feelings of en-
mity or hatred between different classes of Her Majesty's
subjects."
166 TllK LAW Of SEUIIION".
It will be seen at once tliat section 153A, has many inci;
dents in common with section 124A, with w^hich it was once
incorporated. The same principle underlies both provisions,
and it may be doubted whether the separation of the two has
been attended with advantages which are at all commensurate
with the disadvantage of creating a divergence between the
English and the Indian systems of law, when the object of
amending the law was admittedly to bring the two systems.
into closer accord.
It has to be borne in mind that in England the offence of
promoting class-hatred is, as it has always been, treated as
sedition, and therefore the general principles of the law of
sedition (see Chs. ii-iii) would be applicable. But even in India,
where a distinction has been created, the resemblance between
the two provisions is so strong, that the same principles (see
Chs. viii-xii), mutatis mutandis, may be presumed to apply
equally to both.
They are after all only branches of the same law. As
already mentioned, the sanction of Government is essential
to a prosecution under this section, and all the other incidents
of procedure which are applicable to trials for sedition (see
Ch. xi), are also applicable to it, except as regards jurisdiction.
, Oflfences falling under section 153 A are triable by Presidency
or First-class Magistrates, whose powers are regulated by sec-
tion 32 of the Criminal Procedure Code. This section im-
poses a limit of two years' imprisonment and a fine of one
thousand rupees.
The principles of the law of Abetment are likewise appli-
cable to this offence. These have been fully discussed in a pre-
vious chapter (see CJi. xii).
Prosecutions under section 153A have been less frequent
than those for sedition under section 124A, and very few of
these have come before a High Court. Appeals from the juris-
diction of Magistrates of the First class lie to the Sessions Judge
and not to the High Court, unless specially provided for, as
in the case of sedition (s. 408(c) Cr. P. C). Appeals from a
Presidency Magistrate ordinarily lie to the High Court, but only
if the sentence imposed exceeds six months' imprisonment or
two hundred rupees' fine (s. 411).
COGNATE OFFENCES. 167
A conviction by a Magistrate under section 153A, there-
fore, can only come before a Higli Court for revision,
unless an appeal be specially transferred as in the case of the
Rung'pur Bartabaha before mentioned (see Cli- ix). In this case
separate convictions and sentences had been imposed on the
printer and editor of the paper, at one and the same trial, under
sections 124A and 153A, by the District Magistrate of Rung-
pur. Appeals in respect of the former section were preferred
to the High Court, while those under the latter section were
preferred to the Sessions Judge of Rungpur. The learned
Judges who heard the first, transferred the other appeals
(Nos. 746 A and 746B of 1910) for hearing to themselves.
In disposing of the four appeals concurrently their lordships
affirmed the convictions under section 124A and set aside
those under section 153 A, holding that no distinct offence of
attempting to incite one class against another had been made
out.
The article upon which the convictions under section
153A were based has been already referred to in a previous
chapter. It was, in fact, one of the three articles which formed
the subject of the charge under section 124A, while certain
passages in it indicated, in the opinion of the Magistrate, an
intention "to stir up feelings of hatred between different classes
of His Majesty's subjects." The classes referred to were in the
first place Hindus and Mahomedans, and in the second
Europeans and natives.
The passages in the 'article entitled Sipahir Katha which
appear to have been relied on were as follows : — ' ' We
thought that when we had told them news of the Parliament,
of His Excellency the Governor-General of India, of great
men of our country — when we told them who attacked His
Excellency and who made an attempt on the life of His
Honour the Lieutenant-Governor — and lastly when we told
them also of the nine Bengali virtuous men who had been
deported, of Madanlal Dhingra, Khudiram, Arabindo, Baren,
and others too, we had told them satisfactorily, and we thought
that we had strengthened their determination in favour of
Swadeshi. But, alas, we stood speechless when we heard what
they said in reply. ' Babu,' said the Sepoy, 'most of you are
168
THE LAW OF SEDITION.
thieves. You will serve under the Government and fill your
stomach. How shall you then serve your country ? Whenever
we approach you for employment you ask for money. It is
your habit to earn money by disreputable and imfair means.'
' You agitate and exult only in words, and say that a Maho-
medan is your brother. It is you that cause litigation in the
country and absorb the money of the Mahomedans. It is you
that are pleaders and muktears. it is you again that in going to
rescue the poor Mahomedans from litigation throw them into
the danger of Khumbhipaka (hell). It is you that are appro-
priating everything, from the wife's ornaments to the bullocks
of the plough.' ' But your aspiration is only to plume your-
selves on being Government servants, and to suck the blood of
the poor people like ourselves. How can we expect ever to
be able to act in concert with you ? ' "
The second passage was as follows : — ' ' You will play
the role of the clergymen who say ' You were created by God,
you are my brothers.' As soon as a Bengali is converted to
Christianity, the sahib employs him in the kitchen or the garden
on a monthly pay of five rupees, and soon after, the old long-
cherished feeling of contempt for the dark-skinned fellows is
roused for ever.' "
The comment of the learned Judges upon this matter
was as follows : — "The offence under section 153A is not so
clear, as there does not seem to be any deliberate attempt
to incite one class against another. The Sepoys inveigh both
against Baboos and Miyahs, as robbing the poor Mahomedan
raiyats, and the reference to the missionaries is a foolish
illustration not intended to create enmity between the
missionaries and any other subjects of the King. The convic-
tion under this section must therefore be set aside. This dis-
poses of both the appeals by the prisoner." A similar
order was made in the appeal of the printer (No. 746B
of 1910).
In the case of Leahut Hossein Khan and Ahdul Gaffur v.
Emperor (App. No. 214 of 1908), which has been already re-
ferred to (see Ch. xii), the appellants had also been convicted
under both sections, by the Sessions Judge of Backergunge.
On appeal it was held by the High Court that no distinct offence
COGNATE OFFENCES. lt)9
had been established under section 153A, and the convictions
under that section were accordingly set aside, while those under
section 124A were affirmed.
The passage in the seditious leaflet (see Ch. xii) on which
the former conviction was based was as follows : — ' ' Oh
true believers (Oh Musulmans), do not make friends with
Jews and Christians I By Christians is meant the Christian
race."
" We do not consider," their lordships said, " that the
offence charged under section 153A has been made out. The
passage in the leaflet relating to Jews and Christians, on which
alone it can be based, is used only to enforce previous sugges-
tions ; and otherwise there seems to be no attempt to promote
leelings of enmity between different classes which is not covered
by our findings as to the attempt to promote disaffection."
No better proof could be wanted of the close affinity
between these two offences.
Another offence which also belongs to this class is that
comprised in section 505 of the Penal Code. It consists in cir-
culating mischievous reports for certain evil purposes. The
provision had existed from the first, but in 1898 it was found
necessary to recast it in its present form.
In proposing the amendment the Law Member said : —
*' Section 505 of the Penal Code deals with a cognate class of
offences. It punishes the dissemination of certain false state-
ments and rumours which are conducive to public mischief."
The Hon'ble Member then quoted the section as it stood
originally, with the words 'whoever circulates or publishes any
statement, rumour or report which he knows to be false', and
continued — " In its present form this provision is unworkable.
It is impossible for the prosecution to show^ that the person who
circulated the false statement knew it to be false. We propasa
therefore to repeal and re-enact this section in more precise
terms, making the publication of these obnoxious statements
punishable, but allowing the accused to show that the mischiev-
ous statement or rumour was true in fact, and was not pub-
lished or circulated with a criminal intent. It may be said,
and indeed it has been urged upon us, that this is not going far
enough. If a man chooses to publish statements which are
170 THE LAW OF SEDITION.
likely to incite our soldiers to mutiny, or to cause people to
commit offences against the law, be ought to be punished
whether his statements are true or false, and without regard
to his private intentions. There is much force in this argu-
ment, but we should be unwilling to punish a man under thia
section for making a statement which is true, when he publishes
or circulates that statement without any criminal intent. The
universal presumption of law is that a man is deemed to intend
a result which is the ordinary and natural consequence of his
act. When, then, a man chooses to publish a statement, or
circulate a rumour, which on the face of it is directly conducive
to grave public mischief, he cannot complain if he is called
upon to show that his intentions were not criminal."
The proposal to shift the burden of proving the truth of a
statement on to the accused excited apprehension in certain quar-
ters. Some supposed that it was intended thereby to restrict
the assertion of veritable facts, though the language they
employed in expressing their objections might have been less
ambiguous. Sir Griffith Evans in alluding to this in Council
said: — " Some of the objections have been met, and some it
will be more convenient to consider when we come to the pro-
posed amendments. I will notice one. It is said 'The time
has not come to prohibit the telling of the truth in India."'
On this he quaintly observed: — "There is no denying the
humour of this comment."
The Select Committee, however, made an alteration in the
new provision, which certainly seems to remove all possible
objection. This they explained as follows: — "We have
inserted the clause proposed by the Government, but we have
altered and enlarged the scope of the exception to the clause.
No doubt the statements, rumours, and reports referred to are
of a highly mischievous character, but having regard to the
conditions under which modern journalism and the discussion
of public questions are necessarily carried on, we think that,
when the statement, rumour, or report is published without any
criminal intent, it is going too far to require the person who
published it to prove its actual truth. To require such proof
might be throwing an impossible burden upon him, and it
should be sufficient for him to show that he had reasonable
COGNATE OFFENCES. 171
grounds for believing it, as, for instance, by showing that lie
made due inquiry before he published it."
In referring to these liberal concessions the Hon'ble Member
in charge said : — ' ' In section 505 the Select Committee have
made a considerable modification. As the clause now stands
I think it need cause no apprehension to any speaker or journalist
who acts in good faith. It must be borne in mind that the clause
does not strike at mischievous and mendacious reports gener-
ally. It is aimed only at reports calculated to produce
mutiny, or to induce one section of the population to commit
offences against another. If a man takes upon himself to
circulate such a report, he surely cannot complain if he is asked
to show that his intentions were innocent, and that he had
reasonable grounds for believing the report."
The provision thus modified was passed by Act IV of 1898,
and took its place in the Penal Code in lieu of the former
section. The new section is as follows : —
" 505. Whoever makes, publishes or
Statements conducins • i , i. j. i.
to public mischief. Circulates any statement, rumour or
report, —
(a) with intent to cause, or which is likely to cause, any
officer, soldier or sailor in the army or navy of
Her Majesty or in the Royal Indian Marine or
in the Imperial Service Troops to mutiny or other-
wise disregard or fail in his duty as such ; or
(b) with intent to cause, or which is likely to cause, fear
or alarm to the public, whereby any person may
be induced to commit an offence against the State
or against the public tranquillity ; or
(c) w^ith intent to incite, or which is likely to incite, any
class or community of jiersons to commit any
offence against any other class or community ;
shall be punished with imprisonment which may extend to two
years, or with fine, or wnth both.
Excevtion. — It does not amount to an offence, within the
meaning of this section, when the person making, publishing or
circulating any such statement, rumour or report has reason-
able grounds for believing that such statement, rumour or
172 THE LAW OF SEDITION.
teport is true, and makes, publishes or circulates it without
any such, intent as aforesaid."
It will be seen that to constitute an offence under this
section it is not by any means essential that the statement
circulated should be false ; nor would it be a complete defence to
show that it was true. The gist of the offence seems to lie in
the mischievous intent, which is specified in the three clauses
to the section. The proper answer then, to a charge, would
seem to be, first, the absence of any such criminal intent, and,
secondly, reasonable grounds for believing that the statement
was true, although in fact it might be false.
The first mischief contemplated is tampering with the
troops, and requires no explanation.
The second clause has led to misapprehension. In the
case of Manhir (3 C. W. N., 1), the accused had been convicted
under section 505(6) for having circulated a false report among
the coolies of a tea estate in the district of Darjeeling, which
so alarmed them that about 150 of them ran away. It was
held by the High Court that, though the act of the accused
was no doubt mischievous and malicious, he was not punish-
able under the section.
" The mere causing of fear or alarm to the public," they
said, "or to a section of the public, does not constitute an
offence under section 505 — otherwise the accused would cer-
tainly have been guilty — but it is necessary that the fear or
alarm should be caused in such circumstances as to render it
likely that a person may be induced to commit an offence against
the State or against the public tranquillity." The hypothesis
of the lower Court that the coolies might have done so, instead
of running away, was too far-fetched to be taken into consid-
eration. "The accused," they added, "cannot be taken to
have intended more than what seems to us the probable result
of the report which he circulated, the result which in fact did
take place." The conviction was set aside.
The third clause seems to bear a strong affinity with
section 153A. In fact, the offence therein described is only a
particular form of setting, or attempting to set, class against
class, and might almost be held to be comprised in it.
COGNATE OFf^ENCES. 173
It should be mentioned that offences under sections 153A
and 505 of the Penal Code are precisely on the same footing
as regards procedure and jurisdiction.
Sanction is necessary for a prosecution under section 505.
The offence moreover is not cognisable by the Police, and
is triable only by a Magistrate of the First class or a Presidency
Magistrate.
These are the Cognate offences.
PART IT.
PREVENTIVE LAW.
CHAPTER XVI.
ORIGIN AND HISTORY OP PREVENTIVE MEASURES.
Preventive legislation may be said to have had its origin
in India in the year 1823. Whatever may have been the
causes which contributed to produce the fiist measure, there
can be no doubt that Sir Thomas Munro's celebrated minute
on the Indian Press had a good deal to do with it.
On the 12th April, 1822, that distinguished statesman, then
Governor of Madras, had occasion to put on record his views
on this important subject, and the opinions which he then
expressed, as the result of a unique experience, both military
and civil, are still regarded as authoritative. But apart
from this, its historical value can hardly be over-estimated,
for ifc affords a striking picture of the conditions which
prevailed in the country at the time it was written, and of the
circumstances which preceded the legislation of the following
year.
This important record, which is entitled ' ' Danger of a
Free Press in India," has been published in the memoir of the
■distinguished governor by Sir A. Arbuthnot, himself a prom-
inent figure in the Legislative Councils of India, and may be
there referred to. It will suffice to cite here only the more
important passages.
" A great deal has of late been said," he wrote, " both in
this country and in England, regarding the liberty of the
Indian press ; and although nothing has occurred to bring the
question regularly before the Board, yet as I think it one on
which, according to the decision which may be given, the
preservation of our dominion in India may depend, and as it
appears to me desirable that the Honourable Court of Directors
should be in possession of the sentiments of this Government
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 175
at as early a period as possible, I deem it my duty to call the
attention of the Board to the subject.
' ' I cannot view the question of a free press in this country
without feeling that the tenure with which we hold our power
never has been and never can be the liberties of the people.
I therefore consider it as essential to the tranquillity of the
country and the maintenance of our government that all the
present restrictions should be continued. Were the people all
our own countrymen, I would prefer the utmost freedom of the
press, but as they are, nothing could be more dangerous than
such freedom. In place of spreading useful knowledge among
the people, and tending to their better government, it would
generate insubordination, insurrection, and anarchy.
' ' Those who speak of the press being free in this country
have looked at only one part of the subject. They have
looked no further than to Englishmen, and to the press as a
monopoly in their hands for the amusement or benefit of their
countrymen. They have not looked to its freedom among the
natives to be by them employed for whatever they also may
consider to be for their own benefit and that of their country-
men. A free press and the dominion of strangers are things
which are quite incompatible, and which cannot long exist
together. For what is the first duty of a free press ? It is
to deliver the country from a foreign yoke, and to sacrifice to
this one great object every meaner consideration ; and if
we make the press really free to the natives as well as to
Europeans, it must inevitably lead to this result. We might
wish that the press should be used to convey moral and
religious instruction to the natives, and that its efforts should
go no further. They might be satisfied with this for a time,
but would soon learn to apply it to political purposes, to
compare their own situation and ours, and to overthrow our
power.
' ' The restraint on the press is very limited. It extends
only to attacks on the character of Government and its officers,
and on the religion of the natives. On all other points it is
free. The removal of these restrictions could be of advan-
tage to none but the proprietors of newspapers. It is their
business to sell their papers, and they must fill them with such
176 THE LAW OF SEDITION.
articles as are most likely to answer this purpose. Nothing in,
a newspaper excites so much interest as strictures on the
conduct of Government or its officers ; but this is more
peculiarly the case in India, where, from the smallness of the
European society, almost all the individuals composing it are
known to each other, and almost every European may be said
to be a public officer. The newspaper which censures most
freely public men and measures, and which is most personal
in its attacks, will have the greatest sale.
" The law, it may be supposed, would be able to correct
any violent abuse of the liberty of the press ; but this would not
be the case. The petty jury are shop-keepers and mechanics,
a class not holding in this country the same station as in
England — a class by themselves, not mixing with the merchants
or the civil and military servants, insignificant in number, and
having no weight in the community. They will never, how-
ever differently the judge may think, find a libel in a newspaper
against a public officer. Even if the jury could act without
bias, the agitation arising from such trials in a small society
Avould far outweigh any advantage they could produce.
' ' Were we sure that the press would act only through the
masses of the people, after the great body of them should have
imbibed the spirit of freedom, the danger would be seen at a
distance and there would be ample time to guard against it ;
but from our peculiar situation in this country this is not what
would take place, for the danger would come upon us from our
native army, not from the people. In countries not under a
foreign government the spirit of freedom usually grows up with
the gradual progress of early education and knowledge among
the body of the people : this is its natural origin, and were it to
arise in this way in this country, while under our rule, its course
would be quiet and uniform, unattended by any sudden commo-
tion, and the change in the character and opinions of the people
might be met by suitable changes in the form of our government.
But we cannot with any reason expect this silent and tranquil
revolution ; for, owing to the unnatural state in which India
will be placed under a foreign government with a free press and
a native army, the spirit of independence will spring up in this
army, long before it is ever thought of among the people.
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 177
" The high opinion entertained of us by the natives, and the
deference and respect for authority which have hitherto pre-
vailed among ourselves, have been the main cause of our success
in this country, but when these principles shall be shaken or
swept away by a free press, encouraged by our juries to become
a licentious one, the change will soon reach and pervade the
whole native army. I do not apprehend any immediate danger
from the press. It would require many years before it could
produce much effect on our native army. But though the
danger be distant, it is not the less certain, and will inevitably
overtake us if the press become free. The liberty of the press
and a foreign yoke are already stated to be quite incompati-
ble : we cannot leave it free with any regard to our own
safety. We cannot restrain it by trial by jury, because, from
the nature of juries in this country, public officers can never be
tried by their peers. No jury will ever give a verdict against
the publisher of any libel upon them, however gross it may be.
The press must be restrained either by a censor, or by the
power of sending home at once the publisher of any libellous
or inflammatory paper at the responsibility of Government,
without the Supreme Court having authority, on any plea
whatever, to detain him for a single day.
"Such restrictions as those proposed will not hinder the
progress of knowledge among the natives, but rather insure it,
by leaving it to follow its natural course, and protecting ib
against military violence and anarchy. Its natural course is
not the circulation of newspapers and pamphlets among
the natives immediately connected with Europeans, but
education gradually spreading among the body of the people,
and difiusing moral and religious instruction through every
class of the community.
" If we take a contrary course — if we, for the sole benefit
of a few European editors of newspapers, permit a licentious
press to undermine among the natives all respect for the
European character and authority, we shall scatter the seeds
of discontent among our native troops, and never be secure
from insurrection. We are trying an experiment nevei yet tried
in the world, — maintaining a foreign dominion by means of a
native army, and teaching that army, .through a free press,
D, LS 22
178 THE LAW OF SEDITION.
that they ought to expal us and deliver their country. As far as
Europeans only, whether in or out of the service, are concerned,
the freedom or restriction of the press could do little good or
harm, and would hardly deserve any serious attention. It is only
as regards the natives that the press can be viewed with appre-
hension, and it is only when it comes to agitate our native
army that its terrible effects will be felt. Many people, both in
this country and in England, will probably go on admiring the
efiorts of the Indian press, and fondly anticipating the rapid
extension of knowledge among the natives, while a tremendous
revolution, originating in this very press, is preparing, which
will, by the premature and violent overthrow of our power,
disappoint all those hopes, and throw India back into a state
more hopeless of improvement than when we first found her.
" Though I consider the danger as still very distant, I
think that we cannot be too early in taking measures to avert
it : and I trust that the Honourable the Court of Directors will
view the question of the press in India as one of the most
important that ever came before them, and the establishment
of such an engine — unless under the most absolute control
of their Governments — as dangerous in the highest degree to
the existence of the British power in this country."
On the 14th of March, 1823, a ' ' Rule, Ordinance, and
Regulation for the good order and civil government of the
Settlement of Fort William in Bengal ' ' was passed in Council,
and registered in the Supreme Court of Judicature on the 4th
of April following.
On the 5th of April, 1823, a ' ' Regulation for preventing
the establishment of Printing-presses, without license, and for
restraining under certain circumstances, the circulation of
printed books and papers," was passed by the Governor-General
in Council. This was Regulation III of 1823, and its sphere
of operation was " the territories immediately subordinate to
the presidency of Fort William."
Its immediate effect was to place the entire Press — in the
words of Sir Thomas Munro — ' under the absolute control
of the Governnaent.' The new measure prohibited, under a
penalty of one thousand rupees, the printing of any book or
ORIGIN AND HISTORY OP PREVENTIVE MEASURES. 179
paper, or the possession or use of any printing-press or mate-
rials for printing, without a license from Government. Appli-
cations for such licenses, containing a true and complete des-
cription of the applicant and ' ' verified on oath or solemn obli-
gation," could be made through the local magistrate. The
Governor-General in Council might grant or withhold the
license, at his discretion. In any case the grant was conditional,
and might at any time be withdrawn.
The use of a printing-press or materials for printing, after
notice of withdrawal of a license, involved a fine of one
thousand rupees, as well as forfeiture of the press and all printed
matter found on the premises. All books and papers printed
under license were required to bear the name and residence of
the printer, anfl to be submitted for inspection. The circula-
tion of any newspaper or book might be prohibited by notice
in the Government Gazette. The wilful circulation of such
paper or book after notice, was visited with fine, or in default
to imprisonment.
In Bombay, two years later, a " Rule, Ordinance, and
Regulation for preventmg the mischief arising from the printing
and publishing Newspapers, and Periodical and other books
and papers by persons unknown," was passed by the Governor
in Council on the 2nd March, 1825. This, in like manner, was
followed by a" Regulation for restricting the establishment
of Printing-presses and the circulation of printed books and
papers," which was passed by the Governor of Bombay in
Council on the 1st January, 1827.
These Regulations, which are now only of historical
interest, continued in force until the 15th of September, 1835,
when they were repealed and replaced by Act XI of that year.
The reasons for the repeal of these Regulations, Rules and
Ordinances, and the substitution of a less exacting system of
control over the Press are to be found in the minutes of the
Governor-General of India Sir Charles Metcalfe, and his Law
Member Mr. Macaulay. These minutes, though frequently re-
ferred to in subsequent discussions on Press legislation, have
never been o£B.cially published. They may, however, be re-
ierred to in the original manuscript, with the permission of the
Government.
180 THE LAW OF SEDITION.
It is unnecessary to allude to them here, further than to-
mention that the reasons stated by Sir Charles Metcalfe, in his
minute of the 17th April 1835, were — first, that in his opinioa
' the Press ought to be free, if consistently with the safety of
the State it could be ; ' and secondly, that ' it was practically
free.' for the existing restrictions were never put in force, and.
' the Government had no intention of enforcing them.'
But he went on to add that a simple repeal of these res-
trictions would not be enough, and that they were compelled
to substitute for them ' an enactment for the purpose of making
printers and publishers accessible to the laws of the land.'
The measure proposed, which had been drawn by the
Hon'ble Mr. Macaulay, was explained by him as an ' Act to
establish a perfect uniformity in the laws regarding the Press
throughout the Indian Empire.' ' Every person,' he said,
' who chose would be at liberty to set up a newspaper without,
applying for previous permission, but no person would be able
to print or publish sedition or calumny without imminent risk
of punishment.' The Hon'ble Mr. Prinsep while giving his
assent to the Bill observed that ' the late Governor-General,.
Lord William Bentinck, had regarded the existing Press Laws
as good materials to have available in case the necessity should,
arise for State interference.' ' It would be very wrong,' he
thought, ' to take any step calculated to tie the hands of the
Government hereafter, or to deprive it of any of its authority
in such a matter. But, as Mr. Macaulay had said, the Council
had but to decide, and a law suitable to any emergency could
be produced in a day.' He regarded the existing provisions
' as inefiicient as they were inoperative, ' and therefore assented
to their repeal, ' leaving future measures, so far as concerned
the security and protection of the Government against the
Press, to be determined in the future as circumstances might
arise to call for legislation or other interference.'
Another Member, with apparently more pronounced mis-
givings, proposed the addition of a saving clause which should
have the effect of safeguarding the Government in any emer-
gency. Sir Charles Metcalfe, however, remov^ed all apprehen-
sions by stating that ' the power of providing for the safety
of the State was inherent in the Legislature and the Govern-
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 181
ment of every country, and that it was not probable that the
■safety of the State would be endangered so suddenly, by any
operations of the Press, as not to afEordtime to the Legislative
Council to apply a remedy.' ' But,' he added, ' if such an
extreme case of sudden and imminent danger could be con-
ceived, what Government would hesitate to protect itself until
the Legislature of India could provide for the case ? '
The new measure, which was the first Press Act introduced
for the whole of India, was obviously drawn by the Law Member
on the lines of the Statute 38 Geo. Ill, c. 78, which was ' ' An
Act for preventing the mischiefs arising from the printing and
publishing Newspapers and Papers of a like nature by persons
not known, and for regulating the printing and publication of
such Papers in other respects."
Act XI of 1835, which was intended to substitute a system
■of Registration for the system of Licenses then in vogue, was
a short Act of nine sections. The first section purported to
repeal the four Regulations mentioned above, while the re-
maining eight sections provided the new rules which were to
operate in place of them.
It was enacted in section 2, that after the 15th September,
1835, ' ' no printed Periodical work whatever, containing public
news or comments on public news, shall be published within
the Territories of the East India Company, except in conformity
with the rules hereinafter laid down." By these rules every
printer and publisher of any periodical work was obliged, under
a penalty, to sign and file before a magistrate a declaration in
a particular form, setting forth " a true and precise account
of the premises " wherein his printing or publishing was carried
on, and to renew the same as often as the premises were
changed. Printing or publishing any such periodical without
conforming to these rules involved, on conviction, a fine of
five thousand rupees as well as imprisonment extending to two
years.
Section 5 provided that the production of a duly attested
copy of such declaration in any proceeding, civil or criminal,
was primx facie evidence of the responsibility of the declarant
for the publication of " every portion of every Periodical
work whereof the title shall correspond with the title of the
182 THE LAW OF SEDITION.
Periodical work mentioned in tlie said declaration." A
declaration miglit, however, be revoked by a fresh declaration
to that effect under section 6.
A similar declaration was required by section 8 from the
owner of a printing-press, and the breach of this rule likewise
involved the liability to a fine of five thousand rupees and
imprisonment extending to two years.
Every book or paper was moreover required to bear the
name and place of the printer and publisher. The neglect of
this rule was visited with a like penalty. A false declaration
was similarly punished.
These provisions were re-enacted in 1867, almost without
modification, and incorporated with a new Press Act which is scill
in force. They will be found reproduced in sections 3 to 8 and
12 to 15 of Act XXV of 1867 (see Appx.). It may therefore
be said that the provisions enacted in 1835 have continued in
force, practically undisturbed by any intermediate legislation,
down to the present day.
A period of twenty -two years elapsed before the Press was
affected by any fresh legislation, but the events of the year
1857 rendered further legislation of some kind imperatively
necessar3^ On the 13th of June of that year the Legislative
Council met to consider matters of " pressing and paramount
importance."
His Excellency Lord Canning, the President, addressed
the Council as follows : — " Those whom I have the honor to
address are well acquainted with the present aspect of public
affairs. The general disaffection of the Bengal Army in the
North- Western Provinces ; the lawlessness and violence of the
evil-minded part of the population to which this disaffection
has given opportunity and encouragement ; the pillage, the heart-
rending loss of life, and the uprooting of all order in that part
of the country, are painfully notorious. I will not dwell upon
them. Neither will I trace the causes which have led to these
calamitous results, or describe the means by which the Gov-
ernment is meeting and repressing them. But there is one
quarter to which I desire to direct the attention of the Council
— a quarter from which the evil influences which now pervade
so many minds have been industriously put in motion, and to
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 183
whicli a large portion of the discontent instilled into our troops
and our ordinarily harmless and peaceable community is attri-
butable. I doubt whether it is fully understood or known to
what an audacious extent sedition has been poured into
the hearts of the native population of India within the last few
weeks, under the guise of intelligence supplied to them by the
native newspapers."
"It has been done," his Excellency continued, "sedu-
lously, cleverly, artfully. Facts have been grossly misrepre-
sented — so grossly, that with educated and informed minds
the very extravagance of the misrepresentations must compel
discredit. But to native readers of all classes, scattered through
the country, imperfectly acquainted with the proceedings of
the Government, and not well instructed as to what is passing
even immediately around them, these misrepresentations come
uncontradicted, and are readily credited. In addition to per-
version of facts, there are constant vilifications of the Govern-
ment, false assertions of its purposes, and unceasing attempts
to sow discontent and hatred between it and its subjects."
" Against such poisoned weapons," his Excellency went
on to add, " I now ask the Legislative Council to give to the
Executive Government the m.eans of protecting itself, its army,
and its subjects ; and I know no means by which this can be
effectually accomplished other than a law which shall give to
the Executive Government a more absolute and summary
control over the Press than it now has in its hands. With this
view I propose to introduce a Bill this day. The measure is
framed upon the principle that no press shall exist without a
license from the Government ; that the license shall be granted by
the Governor-General in Council under such conditions as he
may think fit ; that on the infraction of any of these conditions,
it shall be in the power of the Governor-General in Council,
and, in distant parts of the Empire, of local governments to
whom he may delegate the authority, to withhold such license,
or, if one has been already granted, to recall it. One of the
sections provides that the Bill shall have effect for one year
only. At the end of that period, the subject will again be
before the Legislative Council, and the Legislative Council will
know how to deal with it according to the circumstances of the
184 THE LAW OF SEDITION.
moment. It is also provided that the Bill shall be applicable,
not only to Bengal, but to all India. I also propose that the
Act shall extend to all periodical and other publications, Euro-
pean as well as Native, whatever their condition or character.
I do not see any reason, nor do I consider it possible in justice
to draw a line of demarcation between European and native
publications. The Bill accordingly applies to every kind of
publication, whatever the language in which it may be printed^
or the nation of the persons who are responsible for what is
put forth in it."
His Excellency concluded in the following terms: — "I
cannot conceal from the Council that I have proposed this
measure with extreme reluctance. It is one which no man
bred in the atmosphere of English public life can propose to those
who are vested with the high authority of legislating for English
dominions, without some feelings of compunction and hesi-
tation. But there are times in the existence of every State in
which something of the liberties and rights which it jealously
cherishes and scrupulously guards in ordinary seasons, must
be sacrificed for the public welfare."
The Chief Justice, Sir James Colvile, in supporting the
Bill said that " the gravity of the step which the Council was
about to take could not be denied. It was called upon sud-
denly to suspend a privilege which had now been enjoyed for
nearly a quarter of a century by the population of this country
— a privilege to which all Englishmen were naturally and
strongly attached. Having heard the statement of his Lord-
ship to-day, he thought it right emphatically to declare that
he was ready to take his share of the responsibility involved
in the adoption of the measure. The freedom of the Press,
like any other privilege, was to be prized onl}^ in so far as it
conduced to the public good."
The Hon'ble Mr. Peacock in referring to the penalties pro-
vided in the Bill, explained that " by Act XI of 1835 a much
higher penalty was provided for a much smaller offence."
The Bill was passed the same day. and remained in
operation for a year, as Act XV of 1857.
This Act, so frequently referred to in subsequent discus-
sions as a temporary suspension of the liberty of the Press,
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 185
merely re-enacted, with slight modifications, the provisions
of Regulation III of 1823, for the whole of India. At the same
time the provisions of Act XI of 1835 were expressly main-
tained. It therefore restored the system of licenses, already
referred to, without disturbing the later system of registration
then in force, and this for the space of a single year.
The next step in ^Press legislation was Act XXV of 1867.
This Act had originally been intended to provide rules for
the preservation and registration of books only, but at a later
stage the BUI was altered so as to include the provisions of Act
XI of 1835, as already mentioned, although as a fact they could
hardly be considered in pari materia. The Hon'ble Mr. Hob-
house who was in charge of the Bill thus explained it : — ' ' It
was considered advisable," he said, " when the Bill was being
considered in Committee, to repeal and re-enact in the Bill a
cognate law on the subject of printing-presses and the regis-
tration of periodicals. It would therefore be observed that
sections 3 to 8 of the amended Bill were simply re-enactments
of Act No. XI of 1835 relating to printing-presses and periodi-
cals, and that sections 12 to 15 were also repetitions of the
same law, but in these latter sections there had been an amend-
ment of some value. Under Act No. XI of 1835 a person
guilty of infringement of the Act was liable to fine and impris-
onment, but that was considered a very severe penalty, and,
in accordance with the provisions of the Penal Code, it had
Ijeen altered to fine or imprisonment, or both."
The provisions of the Press Act of 1867, so far as they
relate to the Press, are contained in Part II, ss. 3 — 9, and in
Part IV, ss. 12 — 15, the portions in fact which were taken from
the Press Act of 1835. Although the Act was amended sub-
sequently (by Act X of 1890), these portions remained undis-
turbed.
Part II of the Act contains the salutary rules, so frequently
referred to in previous chapters, for obtaining declarations
from printers and publishers and the owners of printing-presses,
and for the registration of their names. Section 7 makes
such declarations primi facie evidence of the liability of the
declarant, whether printer or publisher, for the publication
186
THE LAW OP SEDITION.
of every portion of the matter appearing in the periodical
mentioned therein.
Part IV provides the penalties for breach of the rules
contained in Part II. Offences against the Press law are,
shortly, — keeping or using a printing-press without having made
a declaration ; making any false declaration ; and printing or
publishing any book or paper without disclosing the name of
the printer or publisher, and the place of publication (see Appx.).
In the year 1870, it will be remembered, the offence of
sedition was added to the Penal Code (see Ch. i). In 1876, how-
ever, another preventive measure was introduced, and this time
with a view to establish a better control over the Stage. This
was the ' Dramatic Performances Act ' (XIX of 1876), intended
to prevent performances of a seditious or scandalous nature.
The necessity for legislation of this character was ex-
plained by the Hon'ble Mr. Hobhouse, when introducing the
Bill on the 14th March, as follows: — "The subject of stage
plays," he said, " is one on which our law stands in need of
amendment. If, indeed, a play is of a defamatory, an obscene,
or a seditious character, those Avho exhibit it may be punished
for the offence of defamation, obscenity, or sedition. But the
Government have been advised that they have no power to
prevent the performance of any such play, unless, indeed, in
the very rare instances in which it could be said that it was
so certain to lead to a breach of the peace as to constitute the
actors and audience an unlawful assembly."
" This imperfection of our law," he added, " has been
brought pointedly under our attention by some cases which
have recently happened. In the course of last year there
was composed a work in a dramatic form, called the ' Chd-ha-
Darpan,'' which I am told means the Mirror of Tea. I do not
know who was the author, or what his motives were, but the
work itself was as gross a calumny as it is possible to conceive.
The object was to exhibit as monsters of iniquity the tea
planters and those who are engaged in promoting emigration
to the tea districts, — bodies of men as well conducted as any
in the empire. These gentlemen, who are carrying on their
business to the benefit of everybody concerned, and perhaps
ORIGIN AND HISTORY OF PREVENTIVE MEASURES. 187
with a greater proportion of benefit to the labourers they employ
than to any body else, have what is called a mirror held up
to them in which the gratification of vile passions, cruelty,
avarice, and lust is represented as their ordinary occupation.
I do not know that this play was ever acted, but it is written,
and in all respects adapted for the stage, and it might, for any
power of prevention the Government have, be acted at any
moment."
• " It was," he continued, " on account of the defect in
the law that His Excellency the Viceroy thought it right to
issue an Ordinance giving power to the Government of Bengal
to prohibit objectionable performances of this kind. And it
is a Bill on the model of that Ordinance which I am now asking
leave to introduce."
" Now in all times and countries," he went on to add," the
drama has been found to be one of the strongest stimulants
that can be applied to the passions of men. And in times of
excitement no surer mode has been found of directing public
feeling against an individual, a class, or a Government than to
bring them on the stage in an odious light. It is doubtless for
these reasons that the laws of civilised countries give to their
Governments great controlling power over the stage. I will
state briefly what is the law of England. By that law it is not
lawful for any person to have or to keep any house or other
place of public resort for the public performance of stage
plays without the authority either of Royal Letters Patent or
of the Lord Chamberlain's license, or of a license given by
Justices of the Peace. Then there are rules requiring licensees
to give bonds for good conduct, and there are powers given to
the Lord Chamberlain and to the Justices to suspend licenses
and to shut up theatres. The most stringent rule of all is the
one which gives to the Lord Chamberlain complete control
over the stage. First, it is required that a copy of every new
play or alteration in a play shall, seven days before it is acted,
be sent to the Lord Chamberlain, who has absolute discretion
to allow or disallow its performance. Secondly, the Lord
Chamberlain is empowered to forbid the acting of any play^
even though already put upon the stage, ' whenever he shall
be of opinion that it is fitting for the preservation of good
188 THE LAW OF SEDITION.
manners, decorum, or the peace, public so to do.' We shall
not propose to take such large powers as those which are vested
in the Lord Chamberlain, but shall propose to take what will
probably be quite effective in this country."
On a subsequent occasion the Hon'ble Member further
explained the terms of the Bill as follows : — " What was
proposed was that whenever the Government was of opinion
that any dramatic performance was scandalous or defamatory,
or likely to excite feelings of disaffection to the Government,
or likely to deprave and corrupt the persons present at the
performance, or to be in other ways prejudicial to the interests
of the public, the Government might prohibit the performance.
The Bill provided that a copy of the order might be served
on the persons about to take part in the performance, or on
the owner or occupier of the house or place in which it was to
take place, and then penalties were imposed for disobedience
to the order, and power was given to the Magistrate to seize
the scenery, dresses and other articles which were used in
the play which was prohibited. The powers conferred by
section 10 were nearly the same as those which the Lord
Chamberlain had in England. It was proposed that after
notification in the particular place no dramatic performance
should take place except in some licensed house ; that those
about to perform should be bound to give prior notice to the
Government, who might then prohibit the performance if they
thought fit."
When the Bill was finally considered, on the 6th December,
1876, the Hon'ble Member, in answer to some of the objections
raised, said : — ' ' There were many cases in which prevention
was worth all the punishment in the world. That was parti-
cularly true in times of excitement, and in cases where the
play was of a seditious character. If the performance took
place a few times, the mischief was done, and it was a poor
satisfaction to punish the offenders afterwards."
The Bill was passed as Act XIX of 1876, and is now
in force (see Appx.).
CHAPTER XVII.
LATER PREVENTIVE MEASURES.
Ix the year 1878 the Indian Press again engaged the atten-
tion of the Government, and this time in a somewhat more
prominent manner. The circumstances which led to the
passing of what is known as the Vernacular Press Act are very
fully set forth in the speech of the Hon'ble Member who intro-
duced the Bill.
Sir Alexander Arbuthnot in moving its introduction ex-
plained the " considerations which influenced the Government
in bringing forward this measure " as follows : — " The object
of the Bill," he said, "is to place the native newspapers, or,
to speak more correctly, the newspapers which are published
in the vernacular languages of India, under better control, and
to furnish the Government with more effective means than are
provided by the existing law, of repressing seditious writings
which are calculated to produce disaffection towards the
Government in the minds of the ignorant and unenlightened
masses. Another object is to check a system of extortion to
which some of our native feudatories, and many of our native
employes are exposed by the rapacity of unscrupulous native
editors."
" This measure," he added, " has not been resolved on
without much reluctance, for, directed as it is against a parti-
cular class, it involves a description of legislation which is oppos-
ed to the traditions and repugnant to the principles upon which
the administration of British India has been conducted during
a long series of years, and which would not have been resorted
to except for very cogent reasons. It is only because, in the
opinion of the Government of India, the evil against which this
measure is directed is one of great and increasing magni-
tude ; because it is calculated to lower the prestige of the
Government, and to weaken its hold on the esteem and affec-
tions of its subjects ; and because the existing law does not
furnish any adequate means of dealing with it. that the Govern-
190 THE LAW OP SEDITION.
ment have decided to have recourse to special measures for
its repression."
" When the Press of India," he continued, "was liber-
ated by the Government of Sir Charles Metcalfe from the res-
trictions which had previously been imposed upon it, and when
it was placed in a position of freedom from State interference,
which, with the exception of one brief interval of a "single year,
it has occupied since 1835, the native Press was a thing of com-
paratively little importance. In one of the minutes written
at that time Mr. Macaulay states that the papers printed in
the languages of India were few, and exercised very little influ-
ence over the native mind. The entire circulation of native
newspapers throughout the country did not then exceed three
hundred copies. Since those days a great change has taken
place. Newspapers printed in the vernacular languages are
published in most of the large towns in Bengal, Bombay, the
North- Western Provinces and the Punjab, are read and studied
by considerable numbers of people, and exert an influence over
the popular mind which it is difficult to exaggerate. It is not
my wish to include the whole of the native press in the charge
which I am about to prefer against individual members of it.
I know that that Press includes many respectable papers which
are doing useful work, and which are entitled to every encourage-
ment that the State can afford to them. It is not against this
class of newspapers that the present measure is directed.
But there is a large and increasing class of native news-
papers which would seem to exist only for the sake of spread-
ing seditious principles, of bringing the Government and its
European officers into contempt, and of exciting antagonism
between the governing race and the people of the country.
This description of writing is not of very recent growth, but
there has been a marked increase in it of late, and especially
during the last three or four years. During the past twelve
months it has been worse than ever, the writers gaining in
boldness as they find that their writings are allowed to pass
unpunished. Their principal topics are the injustice and tyranny
of the British Government, its utter want of consideration
towards its native subjects, and the insolence and pride of
Englishmen in India, both official and non-official. There is
LATER PREVENTIVE MEASURES. 191
no crime, however heinous, and no meanness however vile,
which according to these writers is not habitually practised by
their English rulers."
The Hon'ble Member then proceeded to illustrate his
argument with examples, and continued: — "The extracts
which I have read, are specimens, extracted haphazard from a
great number, of the manner in which the British Grovernment
and the English race are habitually aspersed and held up to
the contempt and hatred of the people of India. Of late,
however, a further step has been taken, and a beginning has
been made in the direction of inciting the people to upset the
British Raj by denunciations, sometimes open and sometimes
covert, of the alleged weakness and timidity of the English,
and their inability to maintain their present position in
India."
" It cannot be said," he went on to add, " that the
state of things which has arisen has taken the Government
altogether by surprise. That such a state of things would be
one of the results of granting complete freedom to the Press
in this country was predicted many years ago by men whose
honoured names have long been household words in Anglo-
Indian history. I doubt not that many of the members of
this Council are acquainted wuth the remarkable minute which
Sir Thomas Munro, one of the ablest of the many able states-
men who have aided in consolidating British rule in India,
recorded on this subject in 1822. I well remember the interest
with which this minute was reperused at the time of the
Mutiny, and how impossible it was not to be struck by the
almost prophetic character of the utterances which it contained.
I do not rest my argument on the policy of restriction advo
cated by Sir Thomas Munro ; I rest it upon the opinions of men
who were parties to the policy of liberation which was carried
out in 1835, and who, it is evident from their writings, did not
overlook the possibility that such a state of things might arise
as that with which the Government of India are now called
upon to deal. Both Sir Charles Metcalfe and Mr. Macaulay,
the one the originator and the other the draughtsman and elo-
quent defender of the Act of 1835, while arguing strongly in
favour of a free Press, advert to the possibility of circumstances
292 THE LAW OF SEDITION.
arising which might compel the Government of the day to resort
again to legislation of a restrictive character."
"The existing law," he added, "is inadequate for the
suppression of the evil which this Bill is intended to remedy.
The existing law is contained in an Act of 1867, which provides
for the registration of printing presses and newspapers, and in
a section of the Indian Penal Code which makes seditious words
or writings punishable. Now this section of the Penal Code
really furnishes a very inadequate means of dealing with such
writings as those with which this Bill is intended to deal. In
the first place, the explanation which has been added to the
section renders the penalties inapplicable to any case in which
there is not an obvious intention on the part of the writer to
counsel resistance to, or subversion of the lawful authority of
the Government. Therefore to much of the writing to which
I have drawn the attention of the Council this law would not
apply, for there is a great deal of it, which, though very
mischievous in its effects, cannot be said to come under the
category of counselling resistance to lawful authority or subver-
sion of that authority. It will perhaps be said that if so, the
proper course is to amend the Penal Code, and to provide
therein suitable penalties for those who, without advising
rebellion, inflame the minds of the people against their rulers.
I am sure that the Council will not for a moment suppose that
this very natural question has not been deliberately considered
by the Government, but after the most careful reflection, and
consultation with our Law Officers and with the Local Govern-
ments, the conclusion which we have arrived at is that ne
such amendment as could be made in a Penal Code, which is
necessarily of general application, would adequately and
properly meet the peculiar requirements of the present case."
It will be remembered that previous to the legislation of
1898 the Government were confronted with the same difficulty
(see Ch. vii). On that occasion the alternative of amending
the Penal Code was adopted in preference to a reversion to
preventive legislation.
" It would of course be possible," the Hon'ble Member
continued, "to introduce into the Penal Code a provision
rendering penal all writings calculated to inflame the minds of
LATER PREVENTIVE MEASURES. 193
the people against their rulers, irrespective of the intention of
the writers, but such a provision must be of general applica-
tion, and, like the rest of the Penal Code, it must be essentially
punitive. The principle of the Bill which I desire to lay before
the Council is a different principle. The provisions of the Bill
will apply only to one class of writers, namely, the writers
in the vernacular Press, and the measure is not so much a
measure of penal, as it is a measure of preventive legislation.
The machinery by which it will work is a machinery of checks,
rather than of penalties. Its object is to check mischievous
wT-itings of the nature of those to which I have alluded, not by
penal sentences, but by requiring the offenders, or those in
regard to whom it may be apprehended that they are likely to
offend, to engage and deposit security for their good behaviour*
or by merely warning them ; and it is only in the event of the
engagements being broken, or the warnings being disregarded^
that the penalties which the Bill provides will be put in force.
What is needed is a procedure more summary, and framed
rather with a view to j;revention than with a view to punish-
ment."
In conclusion he said: — "In restricting the operation of
this measure to the vernacular Press, and in exempting the
English Press from its operation, the Government of India are
taking a course which involves a departure from the policy by
which it is usually guided, and indeed from the policy which
has be3n followed in all previous legislation regarding the Press
in India. I will not pretend to say that this part of the ques-
tion is perfectly plain and simple, or that in advising the course
•vhich we have determined on after very careful considerationji
we are not laying ourselves open, in some degree at all events,
to the charge of class legislation, and of making what by
many will be regarded as an invidious distinction. It would
have been very easy, but I do not think that it would have
been just, to make the application of the Bill general, and
or the sake of not laying ourselves open to the charge of
creating invidious distinctions to include the English Press in
its operation. My answer is that nearly forty-three years
have elapsed since the passing of Sir Charles Metcalfe's Act^
and nearly twenty-one years since the passing of the Press
D. LS 13
194 THE LAW OF SEDITION.
law of 1857 ; that throughout that period the English Press
has been, on the whole, a loyal and, notwithstanding many im-
perfections, a valuable instrument and aid to the Government ;
while for many years past, and especially in recent years, a
section of the vernacular Press has been chiefly remarkable for
its disloyalty. Such publications as those to which I have
alluded appeal to the ignorant and the unenlightened. They
influence and pervert the minds of the young, and go far to
counteract the benefits of the education which we are endeav-
ouring to impart to them. They constitute, in fact, a mis-
chievous and poisonous literature, embarrassing to the adminis-
tration, subversive of authority, and in every way injurious to
those to whom it is addressed. In framing this measure in its
present form the Government of India has been influenced by
a consideration of the facts with which it has to deal, and after
carefully weighing those facts it has come to the conclusion that
it would not be right to inflict upon the most important and
the most valuable section of the Press a liability to checks
and penalties which it has in no way merited."
" As Englishmen brought up in a free country and accus-
tomed to the advantages of a free Press the members of the
Government of India have no desire to place undue restrictions
on the Press of India. In resolving on this measurt, they are
entirely influenced by their sense of the necessities of the case,
and of the responsibility which devolves upon them for the
maintenance of authority and order."
These are the main passages of a memorable speech which
was delivered on a memorable occasion.
The Advocate-General of Bengal also supported the Bill in
forcible terms, as follows : — ' ' The privilege of writing and
publishing with freedom is doubtless inestimable. So long as
that privilege is exercised honestly and fairly, with a view to
benefit society, and with reference to subjects of common and
public interest, it will be cherished and maintained wherever
free institutions exist and flourish. But the privilege itself is
subject to this limitation, that it must not invade the un-
doubted rights of others. In the case of private individuals
and classes, their character and reputation must be respected ;
and in the case of a Government, its constitution must not
LATiCli PKEVENTIVE JMEASUKES. 195
be wantonly attacked for purposes of injury and mischief,
nor its good name maliciously aspersed. I have in my hand
translations of upwards of one hundred and fifty extracts from
papers published in the vernacular languages which I have read
carefully, and that reading has satisfied me that these publi-
cations contain matter under the following heads, — (1) Seditious
libels, malicious and calumnious attacks on the Government,
accusing it of robbery, oppression, and dishonesty, and im-
puting to it bad faith, injustice and partiality ; (2) libels on
Government officers ; (3) contemptuous observations on the
administration of justice, pointing to its alleged impurity and
worthlessnerfs ; (4) libels on the character of Europeans, attri-
buting to them falsehood, deceit, cruelty, and heartlessness ;
(5) libels on Christians and Christian Governments, and
mischievous tendencies to excite race and religious antipathies ;
(6) suggestions and insinuations which their authors believe fall
short of seditious libels by reason of the absence of positive
declarations."
" In addition to these general characteristics," he contin-
ued, " I find that mis-statements, exaggerations, and alle-
gorical tales intended to sketch real incidents but based purely
on imagination, have been introduced to support or give colour
to the varied, and I might almost add inexhaustible, calum-
nies to be met with. Having attentively' considered these
extracts, I am irresistibly led to the conclusion that it is intend-
ed by these publications to disseminate disaffection, to excite
evil prejudices, to stir up discontent, and to produce mischief
of the gravest order, in short, to render the Government, its
officers, and Europeans generally, hateful to the people. These
are evil purposes which should be repressed with a strong
hand, and their contrivers restrained from all further attempts
to administer their subtile poiscn to the lower orders of the
people, to saturate their minds with evil thoughts, and to
arouse their evil passions." This, it will be remembered, was
the passage cited by Sir Griffith Evans in support of the Bill
to amend the law of sedition in 1898 (see CJi. vii).
"The evils to which I have adverted," the [Hon'ble
Member continued, " are I fear too widespread to be checked
or suppressed by prosecutions under the existing law, and,
196 THE LAW OF SEDITION.
even if it be assumed that prosecutions would be effective in
repressing them, it must be admitted that much time would be
lost in applying such remedy and realising its salutary results.
As time is of the very essence of every remedy by prevention
and restraint, I am entitled to assert that prosecutions for all
practical purposes will be found unavailing. The Bill before
us contains provisions which I think are well calculated to sup-
ply the desired remedy, and I maintain that the time has fairljr
arrived for action — further forbearance may be fraught with
danger. It may be alleged that the provisions of the Pill
are stringent, but I consider that the means to be used for the
suppression and extinction of the evil courses to which the
newspapers under notice have resorted should be as powerful
and effective as if the Government were called upon to deal
with a plague, a pestilence, or other grievous calamity. In.
the course of my professional career I have been a zealous and
unflinching advocate of the freedom of the Press, and I have
the satisfaction of believing that, in according my support to
the present Bill, I am in no way departing from a firm
adherence to the true principles which regulate that freedom.
To protect and encourage journalism conducted with ordinary
care and for honest purposes might be deemed a privilege.
To curb by reasonable and necessary means the unbridled
license of obnoxious and degraded publications, which seek to
spread disaffection and dissatisfaction, — and which may be
used by wicked and designing men to produce discontent
amongst the poor and ignorant to their own detriment, and to
denounce them fearlessly, should be considered by every riglit-
thinking man and by every true citizen an imperative public
duty."
The Bill was likewise supported by the Hon'ble Mr. Evans-
who said: — "I should always view with great jealousy any
restraint upon personal liberty and freedom of speech which
did not appear to be necessary for' the safety or well-being of
the community, but I give my unqualified assent to this Bill,
stringent as its provisions are, for I think it necessary under
the existing state of things. No person can claim to have any
right to follow the trade or calling of spreading disaffection, or
extorting money. An unceasing stream of false and malicious
LATER PREVENTIVE MEASURES.
197
charges is being daily poured out by the vernacular Press against
the English Government and the English race. The poor and
ignorant millions are told that all their misfortunes are due to
England and the English, who cruelly and heartlessly oppress
them, and the prospect of better days is held out to them if
they could only be quit of their oppressors. Thus their minds
are poisoned and their contentment destroyed, and they are
left ready tools for plotters and conspirators. Believing that
the evil is great and the necessity for its immediate abatement
urgent, and that the remedy propose'd is the right one, I have
no hesitation in voting for the Bill."
Sir Ashley Eden, the Lieutenant-Governor of Bengal, in
like manner bore testimony to the gravity of the evil complain-
ed of. " The evil," he said, "has long been felt by the Gov-
ernment of Bengal, and I believe by nearly all the other Local
Governments. My predecessor. Sir G. Campbell, very strongly
stated on several occasions his conviction that measures for
controlling the vernacular Press were called for. What Gov-
ernment does object to is the sedition and gross disloj^alty of
some of the vernacular papers, and their attempts to sow the
seeds of disaffection to the British rule in the minds of ignorant
people. There have been laid before the Government extracts
from the vernacular papers v>'hich establish the constant use
■of language of this description, and show that they habitually
attack and misrepresent the Government under which they live
in peace and prosperity, in terms intended to weaken the author-
ity of Government, and with a reckless disregard of truth and
fact which would not have been tolerated in any country in
the world."
Sir John Strachey testified to the condition of two other
provinces in similar terms. " Not long ago," he said, '' I was
Lieutenant-Governor of one of the great Provinces of India,
and some years previously the Government of another Province
was entrusted to me. The questions which are dealt with in
this Bill have consequently been frequently brought home to
me in a very practical shape. I have had to look on power-
less at the mischief that has been going on, and have deplored
the neglect with which it has been treated by the Government.
I have known that this neglect has not been caused by
198 THE LAW OP SLCUIilON.
indifference, but by the natural disinclination, which happily
all Englishmen feel, to do anything which shall have even the
appearance of interfering v/ith the liberty of the Press, and if
I myself now thought that this Bill Avas really open to such a
charge I should have been unable to give it my support, f
deny that this measure will infringe that liberty. Liberty of
the Press means liberty of discussion, liberty for the free ex-
pression of thought and opinion. But liberty does not mean
unbridled license. It does not mean unlimited permission to
let loose on the land a never-ending stream of abuse of all the
institutions by aid of which society is held together ; abuse of
those things respect for which is indispensable for the preserv-
ation of the lives and property of every one ; abuse of the Gov-
ernment, of the administration of justice, of the whole English
race, and of all it does or desires to do."
"The honest journalist," he w^ent on to add, "has
nothing to fear from the present measure. He will be as free
as he has ever been to give expression to his opinions, to discuss
the action of the Government and its officers, to advocate those
measures and doctrines of which he approves, and to censure
those that he condemns. The limitations under which he may
do this will in no respect differ from those that apply in
England." The Hon'ble Member then cited the observations
of Lord Fitzgerald on public journalism in Sullivan's case
(see Ch. ii), and added : — " These are the principles by which
the British Government desires to be guided in this country
also."
His Excellency Lord Lytton, the President, summed \ip
1he case with consummate skill and judgment. He said : —
' ' I cannot but regret the necessity which, by some irony
of fate, has imposed upon me the duty of undertaking legisla-
tion for the purpose of putting restrictions on a portion of the
Press in India. By association, by temperament, by convic-
tion, I should naturally find my place on the side of those tO'
whom the free utterance of thought and opinion is an inherited
instinct and a national bii'thright. I should have rejoiced
had it fallen to my lot to be able to enlarge, rather than res-
trict, the liberty of the Press in India, for neither the existence,
noi the freedom of the Press in this country is of native origin
LATEK PREVENTIVE MEASURES. 199
or growth. It is an exotic which especially claims and needs
from the hands that planted it in a foreign soil and clime,
protecting shelter and fostering care. It is one of the many pecu
liarly British institutions which British rule has bestowed upon
a population to whom it was previously unknown, in the belief
that it will eventually prove beneficial to the people uf India,
by gradually developing in thnr character those qualities which
have rendered it beneficial to our own countrymen. For this
reason the British rulers of India have always, and rightly,
regarded with exceptional tolerance the occasional misuse
of an instrument confided to unpractised hands. But all the
more is it incumbent on the Government of India to take due
care that the gift for which it is responsible shall not become
a curse, instead of a blessing, a stone instead of bread, to its
recipients. Under a deep sense of this great responsibility I
say distinctly, and without hesitation, that, in my deliberate
and sincere conviction, the present measure is imperatively
called for by that supreme law — ^the safety of the State."
" We have endeavoured," His Excellency continued, " to
base our rule in India on justice, uprightness, progressive en-
lightenment, and good government, as these are understood
in England ; and it is at least a plausible postulate, which at
first sight appears to be a sound one, that so long as these are
the characteristics of our rule we need fear no disaffection on
the part of the masses. It must, how^ever, be remembered that
the problem undertaken by the British rulers of India is the
application of the most refined principles of European govern-
ment, and some of the most artificial institutions of European
society to a vast oriental population, in whose history, habits,
and traditions they have had no previous existence. Such
phrases as ' Liberty of the Press' and others, which in England
have long been the mere catchwords of ideas common to the
whole race, and deeply impressed upon its character by all the
events of its history and all the most cherished recollections of
its earlier life, are here in India, to the vast mass of our native
subjects, the mysterious formulas of a foreign, and more or less
uncongenial system of administration, which is scarcely, if at
all, intelligible to the greater number of those for whose benefit
it is maintained. It is a fact which, when I first came to India,
200 THE LAW OF SEDITION.
was strongly iznpressed on my attention by one of India's
wisest and most thoughtful administrators, — it is a fact which
there is no disguising, and it is also one which cannot be too
constantly or too anxiously recognised, that, by enforcing
these principles and establishing these institutions, we have
placed and must permanently maintain ourselves at the head
of a gradual but gigantic revolution ; the greatest and most
momentous, social, moral and religious, as well as political
revolution which perhaps the world has ever witnessed."
" Now if the public interpreters and critics of our action
were only European journalists capable of understanding and
criticising it from a European point of view, in reference to the
known principles of European policy, and in accordance with
the commonly accepted rules of European reasoning, then I
think we might rationally anticipate nothing but ultimate
advantage to the country as well as to its Government, from
the unrestricted expression of their opinion, however severely
they might criticise, from time to time, this or that particular
detail in the action of this or that particular administration.
But this is not the case as regards those journals which are
published in the vernacular languages. Written for the most
part b}'' persons very imperfectly educated, and altogether
inexperienced ; written, moreover, down to the level of the
lowest intelligence, and with an undisguised appeal to the most
disloyal sentiments and mischievous passions ; these journah.
are read only or chiefly by persons still more ignorant, still
more uneducated, still more inexperienced than the writerf^
of them ; persons wholly unable to judge for themselves, and
entirely dependent for their interpretation of our action upon
these self-constituted and incompetent teachers. Not content
with misrepresenting the Government and maligning the
character of the ruling race in every possible way and on every
possible occasion, those mischievous scribblers have of late
been preaching open sedition ; and, as shown by some of the
passages which have to-da}'' been quoted from their publica-
tions, they have begun to inculcate combination on the . part
of the native subjects of the Empress of India for the avowed
purpose of putting an end to the British Raj. This is no ex-
aggeration. I have here under my hand a mass of such
LATER PREVENTIVE MEASURES. 201
poisonous matter, extracted from the various organs of the verna-
■Gular Press."
After citing a variety of examples His Excellency contin-
ued : — " I think the Council must have been satisfied by the
specimens which have now been submitted to its notice that
the vernacular Press is at present adept in the treasonable art
of instigating mischievous action, both by the expression of
opinion and the statement of fact. I am confident that there
is no Government in the world which would tolerate, no Gov-
■ernment which could afford to tolerate, none which would bo
justified in tolerating the unrestricted utterance of such language
as is now addressed by the vernacular journals of this country
to the ignorance, the prejudices and the passions of a subject
race. I maintain that to prohibit the mischievous utterances
of such journals as those from which I have quoted is no more
an interference with the liberty of the Press, than to prohibit
the promiscuous sale of deadly poisons is an interference with
the freedom of trade."
" If," he went on to add, " even in the most advanced
self-governing societies, it be still the acknowledged duty of
the State to provide by law for the repression of publications
calculated or designed to pervert the mind and poison the sen-
timents of those whose characters are yet unformed and whose
judgment is still immature, then I assert with confidence that
there is no Government in the world on which that duty is
more incumbent than the Government of India, and that the
measure which in our discharge of that duty we have laid before
this Council is an eminently just as well as an urgently
necessary measure. For I maintain without fear of contradic-
"bion that the young people in England for whose mental and
moral protection Lord Campbell's Act was passed are infinitely
less ignorant, less easily influenced, infinitely better able to
govern their own passions and guide their own conduct,
than the helpless masses of our native population, on whose
behalf you are now asked to pass this Bill. It may, and by
oome persons it probably will be regarded as an objection to
this measure that it draws a distinction, and apparently an
invidious distinction, between the native and the English
Press. The distinction is not between Englishmen and natives
202 THE LAW OF SEDITION.
or between the English Press and the native Press. It is not
against native papers as such that our legislation is directed.
We confine our measures of restriction purely to the papers
written in vernacular languages, and we do so because, a,s
I have said before, they are addressed solely to an ignorant,
excitable, helpless class — a class whose members have no other
means of information, no other guide as to the action and
motives of their rulers."
In conclusion, His Excellency said : — ' ' We must, of course^
expect that by those people whose minds are governed by
phrases, and who look upon the liberty of the Press as a fetish
to be worshipped rather than as a privilege to be worthily
earned and rationally enjoyed, this measure will be received
with dislike, and the authors of it assailed with obloquy.
It is my hope, however, that the gradual spread of edu-
cation and enlightenment in India may insure and expedite
the arrival of a time when the restrictions we are now imposing,
can with safety be removed. I am unwilling to hamper the
free influence of honest thovight, but I recognise in the present
circumstances of this country and the present condition of the
populations committed to our charge a clear and obvious duty
to check the propagation of sedition and prevent ignorant,
foolish, and irresponsible persons from recklessly destroying,
the noble edifice which still generously shelters even its vilest
detractors. That edifice has been slowly reared by the genius
of British statesmanship out of the achievements of British
valour. It was founded by English enterprise ; it has been
cemented by English blood ; it is adorned with the brightest
memorials of English character. The safe preservation of this
great Imperial heirloom is the first and highest duty of those
to whose charge it is entmsted — a duty owed to the memory
of our fathers as well as to the interests of our children, to the
honour of our Sovereign, no less than to the welfare of all her
subjects in India."
The Bill was passed, and became Act IX of 1878. This
Act, which is now chiefly of historical interest, may be des-
cribed as a measure designed for the prevention of sedition
and extortion by the publishers of periodical literature in the
vernacular languages, by means of a system of personal security.
CHAPTER XVIII.
LATER PREVENTIVE MEASURES — COntd.
The Vernacular Prv ss Act of 1878 was passed on the 14tb
of March, and on the 5th September following a Bill was intro-
duced to amend it. This, as was explained by the Mover, was
in consequence of the doubts expressed by the Secretary of
State as to the efficacy of one of its provisions.
On the 16tli October the opportunity was taken by Sir A.
Arbuthnot of stating to the Council how the Act had operated
during the short period that had elapsed since its enactment.
He said : — " When I obtained leave to introduce this Bill I ex-
plained the circumstances under which the Bill had been framed
and the particular point on which the Secretary of State had
desired that the Act passed in March last should be amended,
and I said that I would take the opportunity to offer a few
remarks with reference to the working of the Act which it is
now proposed to amend, and also with reference to the discus-
sions which have taken place regarding that measure since it was
passed. Seven months have now elapsed since the Vernacular
Press Act became law, and there has been no necessity for
bringing the Act into operation in anj^ single instance. The
Act in this respect has so far justified — and indeed has more
than justified — ^the hope wmch I ventured to express when it
Avas passed, that the mere existence of this law would, in a
great measure, suffice to repress the mischief against which it is
aimed, and that the actual enforcement of its provisions would
be a thing of very rare occurrence. As a matter of fact seditioiis
and disloyal writing — writing calculated to inflame the minds
of the masses and to bring the Government into contempt —
has been entirely stopped."
" At the same time," he added, " there has been uo inter-
ference with the legitimate expression of opinion. The liberty
of the Press has not been in any way restricted. It is con-
stantly alleged that the \ernacular Press has been gagged, that
the native Press has been silenced. I am bound to say that in
204 THE LAW OF SEDITION.
the case of persons at a distance — in tlie case of English states-
men who have no opportunity of knowing what is actually
going on, on the spot — such impressions are by no mi^ans un-
reasonable. But to those who are acquainted with the actual
state of things — to those who have the opportunity of seeing
the vernacular papers, or the extracts from them which are
periodically printed — it must by this time be apparent that
the result which might have been apprehended has not occur-
red. I need only allude to the comments which have been
constantly made in the vernacular newspapers on the Press
Act, on the License-tax, and on the Arms Act, to show that on
all these matters there is still the freest and the most unreserved
criticism and comment. This, so far as we can form a judgment
from the history of the past sev^en mouths, has been the result ;
and I cannot but think that it is a result which must be regard-
ed as very satisfactory. The Act, which in many quarters has
been so vigorously condemned, has entirely succeeded in its
object of checking seditious writing, and has in no way res-
tricted or diminished the legitimate freedom of the Press."
" The Secretary of )State," he went on to add, " empha
tically approved of it. In the sixth paragraph of the despatch.
Lord Cranbrook writes that he is bound to say that ' a strong
case appears to be established for the further control of the
class of newspapers at which the Act is aimed,' and after
noticing the arguments which were adduced by some of the
speakers in this Council, His Lordship proceeds to add an
argument of his own, which is to the effect that, ' remembering
how few opportunities the experience of these writers has
afiorded them of understanding the limits of justifiable criti-
cism, he is inclined to think that a system of pecuniary penal-
ties leviable under bonds, would be more applicable to tb>Mr
case than criminal prosecutions for an offence which may con-
ceivably entail a punishment so heavy as transportation for
life.' It would be idle to deny that the Vernacular Press Act
has been received with disapproval by many persons whose
opinions are entitled to the respectful consideration of this
Council. Such a result was only to be expected. The measure
is one which was not resolved on by the Government without
great reluctance and regret, and it was not probable that a
LATER PREVENTIVE MEASURES. 205
measure of this nature would be received with acclamation.
Notwithstanding these expressions of disapproval it is not pro-
posed to repeal the Act. The Grovernment of India have not
in any way receded from the opinion that the Act was a poli-
tical necessity."
In conclusion he said: — "The Government consider the
working of the Act during the few months that it has been on
the Statute-book to have been even more satisfactory than the
most sanguine expectations could have foreseen. So far it has
effectually repressed the evil against which it was aimed, while
it has in no vray interfered with or restricted the legitimate
freedom of the Press."
His Excellency Lord Lytton, the President, addressed the
Council as follows : — " If I do not give a silent vote on this
occasion, it is only because I am anxious that my silence shall
not be misinterpreted. Although the thoughtful . speech of
my hon'ble colleague naturally and properly turned chiefly
ux)on the Vernacular Press Act, yet the Council is aware that
neither the Vernacular Press Act, nor the principle, nor the
expediency of that Act are here under discussion. My hon'ble
ccUeague has reminded us that the Vernacular Press Act has
now for some time been in force, with the approval of the
Secretary of State and the ratification of the British Parliament,
and no action can be taken in any part of India without the
carefully considered sanction of the Supreme Government. Up
to the present time no action has been necessary under the
Act, and I trust that no such action Mall be necessary. But
I do not hesitate to say that the existence of the law has been
eminently beneficial in its effects, and productive of a marked
improvement in the general tone and character of Vernacular
iournalism. Many evidences of this might, doubtless, be added
to those which have been cited by my hon'ble colleague ; but
I think the Council will have been satisfied by the statement
we have just heard from him that the efiecfs of the Vernacular
Press Law are vigilantly watched and considered by the
Department over which he presides ; and that this law, whilst
effectually restraining seditious and profligate publications,
has in no wise hindered the freest and fullest expression
of antagonistic opinion on the policy and conduct of the
206 THE LAW OF SEDITION.
Executive or the Legislature in the fair field of public
criticism."
" The Couucil is aware," His Excellency continued,
" that the object of the present Press Law is preventive, not
punitive ; and speaking for myself I can truly affirm that my
own object, both in connection with that 'aw and generally
as regards all the relations between the Government and the
Press, has been, not to check, but to promote the growth, not
to injure, but to improve the position, of the Vernacular Press.
I say no more. The Vernacular Press has received from the
Government which passed the existing Press Law not merely
toleration, but sympathy, not merely good wishes, but good
ofliees. I have always felt that our duty toward that portion
of the Press was of a two-fold character. We were bound,
indeed, to protect the community from the abuse of freedom
on the part of certain Vernacular journals ; but we were
also bound in the interests of the community, as well as of the
Press itself, simultaneously to do all in our power to encourage
and assist the Vernacular Press in the cultivation of that freedom
which the present law denies to no honest journalist. "
" Now I think there is no use," he added, " in ignoring
the plain fact that the existence of a free Press in a country
whose Government is not based on free institutions, or carried
on upon representative principles, is a great political anomaly,
and that the relations between such a Government and such a
Press must necessarily be somewhat peculiar. A Press exists
for the circulation of facts, as well as of opinions about them.
If the facts are untrue, the opinions mast be unsound. Adequate
political information is as necessary for the sustenance of
a healthy Press as adequate food for that of a healthy human
being. But in this country the only source of authentic political
information is the Government itself, whose political acts are
the legitimate subject of that public criticism which it is the
function of the Press to supply. If you put aside the Govern-
ment ; beyond, and apart, and independently of the Govern-
ment, where is such information to be found ? In the
rumours of the streets, in the gossip of the bazars and the
mess-rooms, in the interior consciousness of amateur political
LATER PREVENTIVE MEASURES. 207
prophets, or the occasional indiscretion of some official clerk.
And therefore I think that in presence of a Press which is, so
to speak, constrained to forage for its sustenance on such a
barren moor, it is the duty of the Government, so far as it is
possible to do so, to keep the Press fully and impartially
furnished with accurate current information in reference to
such measures, or intentions on the part of Government, as
are susceptible of immediate publication, without injury to
the interests for which the Government is responsible."
In conclusion he said: — " The object of the present Bill
is to remove from the Vernacular Press Act a clause which was
inserted into that Act, not without certain hesitation at th^
time, purely as a mitigating, not as an intensifying clause.
The Secretary of State, whilst sanctioning the whole Bill inclu-
sive of this clause, expressed an opinion that the option thus
given to impecunious editors to place their journals under
temporary supervision as an alternative to penalties which
might otherwise in such cases put an end altogether to the
precarious existence of the offending journal, was a provision
liable to misuse, and which might in practice introduce a prin-
ciple nowhere else recognised in the Act, and indeed generally
inconsistent wdth the spirit of it. The Secretary of State,
therefore, requested the Government of India not to act
upon this clause. This amending Act, however, leaves of
com^se wholly unaltered the character and principle of the
original Act."
The Bill was then passed as Act XVI of 1878. Act IX
of 1878, thus amended, had been in force for a little over
three years when, on the 7th December, 1881, a Bill was
introduced to repeal it. The reasons for this measure were
briefly stated by the Mover of the Bill to be that ; "in the
opinion of the present Government," circumstances no longer
justified the existence of the Act.
On a subsequent occasion, the 19th of January 1882, the
reasons were more fully explained by the Hon'ble Member
in charge, and by Sir W. Hunter who warmly supported the
repeal. In referring to the circumstances which led to the
passing of Act IX of 1878, Sir W. Hunter said:—" In that
208 THE LAW OF SEDITION.
year the Government of India deemed it needful in the public
inttrest, to obtain from the Legislature special powers for
repressing seditious and threatening writings in the Vernacular
Press. He confessed that after perusing the published evi-
dence, he was one of those who deplored that such powers
should have been deemed necessary. But for this very reason
be thought that he, and others who like himself regretted that
repressive powers were then found needful, should now
acknowledge the forbearance with which those powers had been
used. There were no returns before the Council to show how
far the Vernacular Press Act of 1878 had been resorted to in the
several Presidencies and Provinces. But aftef inquiry in the
proper quarter he believed he was correct in saying that in only
one instance had the repressive clauses of that Act been made
use of against any newspaper. Now the Council must remem-
ber that not fewer than 230 journals were regularly published
in the native languages, and that any one of these newspapers
might, by the exercise of the powers granted to the Executive
in 1878, have been brought under the operation of the Act.
The fact that in only one case had even a warning been
issued to a native newspaper under the Act sufficed to show
the extreme reluctance with which the Executive had availed
itself of the powers vested in it during the past four years."
" As regards seditious or threatening writings in the Ver-
nacular Press published within India," he continued, "the
iepealing Bill pursued a different course. It made no special
provision for such writings, and so left them to be dealt with
by the ordinary law. He did not think it could be alleged that
the Bill made undue concessions, or that it tampered with the
legal safeguards for private repiitations or for the public safety.
At the same time he believed that it would substantially im-
prove the position of the Vernacular Press. It practically
intimated that the profession of the native journalist was no
longer regarded with suspicion by the Government. It set
free his implements of trade from the menace of confiscation
under a special law. It told him that he was henceforth trusted
to carry on his industry, subject only to the same judicial pro-
cedure and to the same laws as those under which his iellow-
citizens followed their respective callings."
LATER PKEVENTIVE MEASURES. 209
"There was, however," he added, "another aspect of
the case. For the wider liberty now secured to the native
journalist carried with it a heavier responsibility to use that
liberty aright. He believed that the great proportion of native
journalists throughout India would prove themselves worthy
of unrestricted freedom. But he was compelled to add that
certain members of their profession had still much to learn in
regard to what was due, alike to the just susceptibilities of
those on whom they commented, and to the dignity of their own
calling. He would be a false friend to the native Press if he
pretended that it had yet attained to that sobriety of judgment
and temperance *in tone, or to those high standards of public
responsibility which its well-wishers hoped to see it reach."
"The native Press," he said in conclusion, "had an
opportunity now which it never had before. For after all it
was the chief organ of representation in India, and never before
was so serious a desire evinced by the C4overnment to give
representative institutions a fair trial. The Indian Press was
a Parliament always in session, and to Avhich every native was
eligible who had anything to say that was worthy of being
heard. The Vernacular journalists should realise two things.
If they now used their liberty aright they would strengthen
the hands of those who wished to foster the popular element
in the administration. But if they abused their liberty, they
would furnish a most powerful argument for postponing the
further development of representative institutions in India."
The Bill was received with u nanimous assent. One incident
alone occurred which could have impaired the generous optimism
of the Hon'ble Member. The ' amari aliquid ' was contained in
the concluding remark of the Mover of the Bill that " should the
Governmeat hereafter find it necessary to take stronger measures
than were contained in the provisions of the Penal Code, he
might safely say that this Government, and he hoped any
future Government, would follow the example of Lord Canning
on an emergency, and take effective measures to put a stop to
any writings which were likely to endanger the public safety."
His Excellency Lord Ripon, the President of the Council,
m bringing the proceeding to a close made no allusion of any
D. LS 14
210 THE LAW OF SEDITION.
sort to the circumstances -wliicli. led to tlie passing of the Act
of 1878, or to the reasons which induced its repeal. He merely-
said that " he did not wish to detain tht; Council by any obser-
vations of his own, nor did he think that he was- in any way
called upon to review the reasons or motives for which the Act
was originally introduced. All he desired to say was that it
would always be a great satisfaction to him that it should have
been during the time that he held the office of Viceroy that the
Act had been removed from the Indian Statute-book."
The Bill was then passed, and the Vernacular Press Act
ceased to exist.
How far the sanguine prognostications of Sir W. Hunter
were realised may be ascertained from the speeches delivered
in Council by the Lieutenant-Governor of Bengal, Sir A. Mac
kenzie, and by Sir G. Evans in 1898, at the time when the law
of sedition was amended. These have been fully discussed in
a previous chapter which deal-5 with the subject (see Ch. vii),
and it is unnecessary to cite them again. The gist of their
views, however, is summed up in two short and significant
passages. The Lieutenant-Governor in the course of his speech
on that occasion said: — "The necessity for the proposed
legislation is unquestionable. Ever since the repeal of the
Vernacular Press Act, the native Press has been year by year
growing more reckless in its mode of writing about the Gov-
ernment, Government officers, and Government measures."
The unofficial Member, who had had the unique experience of
witnessing the passing of both enactments and of giving his
assent to both measures, said, in the course of a long and ela-
borate argument : — ' ' The Vernacular Press Act was intro-
duced to check license while leaving liberty. It worked well
and without hardship, but was repealed in 1882. Since then
the mischief has spread rapidly."
However this may be, there is no disguising the fact that in
1898 the Government of India were confronted with precisely
the same situation as they had been in 1878. The necessity
for legislation, with its two alternative courses, again presented
itself. The one was to enact a Press Act ; the other to amend
the law of sedition. In 1878 the Legislature selected the former
course, while in 1898 they preferred to adopt the latter.
LATER PREVENTIVE MEASURES. 211
The gravity of the position was franlch^ admitted by the
Law Member when introducing his Bill to amend the Penal
Code. " Recent events in India," he said, "have called pro-
minent attention to the law relating to seditious utterances
and writings. We have had anxiously to consider the state
of the law regarding these matters, and to decide whether, and
in what lespects, it required amendment. Two different lines
of action were open to us. The first was to re-enact a Press
Law similar to the Vernacular Press Act of 1878. • The second
was to amend the general law relating to sedition and cognate
offences, so as to make it efficient for its purpose. We have
come to the conclusion that the second course is the right one
for us to take."
The circumstances attending the passing of Act IV of
1898 have already been fully discussed in dealing with penal
measures (see Ch. vii). There was, however, another measure,
•enacted simultaneously by Act V of 1898, of a preventive
character, which it is necessary to mention here. This was
section 108 of the Criminal Procedure Code (Act \ of 1898).
The new provision inserted in the Code was designed to
prevent the dissemination of seditious matter, either orally or
in v/riting, b)^ means of a system of personal security.
In explaining the purport and object of the section the
Law Member said: — " Section 109 of that Code provides that
in certain cases people who misbehave themselves may be
bound over and required to find sureties to be of good be-
haviour for a term not exceeding twelve months. We propose
to apply a similar procedure to the case of people who either
orally or in writing disseminate or attempt to disseminate
obscene, seditious, or defamatory matter. A. man who dis-
seminates, that is to say, who sows broadcast or scatters abroad
such matter, is obviously a dangerous public nuisance. It is
immaterial whether he chooses as his means of dissemination
an oral address, or a book, or a pamphlet, or a newspaper.
We are bound to check such obnoxious conduct. But as a
xule, the persons who are guilty of it are small and insignifi-
cant individuals. They may do enormous mischief among
un<:*ducated, foolish, and ignorant people, but in themselves they
^re deserving of very little notice. It is absurd to deal with
212 THE LAW OF SEDITION.
them by an elaborate State prosecution. We think that in
most cascs no prosecution at all will be required. It will be
sufficient to give them an eflfecfciv^e warning to discontinue
their evil practices, and we think that the machinery we have
devised will operate as an effective warning. The general
power of revision possessed by the High Courts will secure
that that machinery will not be used in any way oppressively ;
and we further propose that this new power should only be
exercised by Presidency or District Magistrates, or specially
empowered Magistrates of the first class."
The section underwent some modifications at the hands
of the Select Committee. These are set out in their Report
of the 16th February 1898. " We have provided," they said,
" that the bond may be with or without sureties. We have
cut out the reference to ' obscene matter,' as we think that it
is sufficiently provided for by the ordinary law. We have ex-
plained the reference to ' seditious matter " by reference to
the provisions of the proposed new section 124A of the Indian
Penal Code, and we have included matter punishable under
the proposed new section 153A of that Code. We have cut out
the reference to ' defamatory matter ' as that term is much too
wide, and after consideration we have substituted the words
' any matter concerning a Judge which amounts to criminal
intimidation or defamation under the Indian Penal Code.' ' '
When the Bill came before the Council on a subsequent
date (Uth March), a further amendment was introduced at
the instance of Sir Griffith Evans. The last clause to the
section was added, requiring the sanction of Government for
proceedings in certain cases (see Appx.).
He explained its purport as follows : — ' ' The effect rough-
ly speaking is to require the same sanction of Government
when proceedings are instituted under section 108 against the
Press as is required in all cases of a prosecution under section
124A. The result will be that Magistrates will be able to take
proceedings without Government sanction in all other cases.
It may be asked why this distinction should be made between
oral and written sedition. One reason is that oral incitements
to a mob of ignorant people are apt to lead to immediate dis-
turbances, and may require immediate action without wjiiting
LATER PREVENTIVES MEASURES. 213
for sanction. Anuther is that many seditious preachers are
migratory, and must be caught at once if they are tQ be stopped,
wh areas newspaper editors and publishers have a fixed address
and a fixed occupation, and can be found at any time. Biit the
main leason is a dilTerent one. A portion of the Vernacular Press
has been allowed to drift into a very lamentable condition for
many years, and the curb which it is proposed to put upon
them by this section will have to be applied with great discre-
tion and judgment. It is, I think, essential that this power
should be exercised by persons of the ripest judgment, living in
a serener atmosphere, away from local feeling and excitement.
In fact, I do not think that any one but the Government ought
to use this power, ^\ith any prospect of the good results which
are intended."
" As however," he added, "the statement has been re-
iterated to-day that there is no sedition, or no ' appreciable
sedition,' in India, I desire to make it clear that it is from no
sympathy with the view that I move this amendment. T will
not waste time in the barren discussion of whether sedition is
the right word to describe what does exist. But I have since
the last meeting of the Council waded through a large mass of
authorised translations of extracts from the Vernacular Press
for the year 1897, and this is what I find." The Hon'ble
Member then cited a copious selection of examples by way of
illustration, and continued : — " This is the kind of thing which
every body can read for himself and call by any name he pleases
■except honest criticism. This is the kind of thing they have
been teaching the people while the famine officials have been
spending their lives and health in endeavouring to cope with
it, while the plague officials have been braving the plague,
and making unparallelled exertions in order to save the lives
of the people. The evil is great and is so deep-rooted that it
will require wisdom as well as firmness to deal with it. Any
indiscreet action would recoil on the Government. When
it is found that the manufacture and sale of this kind of
poison is prohibited, and no longer yields a safe livelihood, I
hope the tone of malignant perversity may be abandoned, and
something more like honest criticism may take its place. But
it will take time."
214.' •:' THE LAW OF SEDITION.
It will be observed that the f undameutai principle of this-
provision, like the Press Act of 1878, is personal security.
This point of similarity between the two measures was not lost
sight of by the opponents of the Bill. It was suggested, .
in fact, that the Law Member, while disavowing all inten-
tions of resorting to Press legislation, was virtually reviving.
in the proposed clause the obnoxious Press Act of 1878. In
answer to this two essential differences in the new section
were pointed out. One was that it was " not aimed speci-
fically at writers or editors," but at seditious people generally.
The other was that it only applied to those who had actually
offended against the law, in Avhich respect it dift'ered '' wholly
and absolutely from the old Press law."
Two cases under section • 108 of the Criminal Procedure
Code are reported to have come before the High Courts, the
one in Calcutta, and the other in Bombay.
In the former case, Beni Bhushan Ro>/ v. Emperor (.34 CaL
991), the petitioner was a local pleader, practising at Khulna.
On the 15th July 1907 he had been directed by the District
Magistrate, under section 108, to execute a bond for Rs. 5,000,
with two sureties, to be of good behaviour for one year. The
proceeding was in respect of a speech Avhich he delivered at a
public meeting in the town of Khulna. The language used by
him on that occasion is indicated in the notice served on him
in terms of the section. In it he ' ' referred to the present year
as being very auspicious for the inauguration of the meeting,,
as it was the fiftieth anniversary of the Indian Mutiny, when
there was an attempt of the natives of India to regain their
country, which was almost successful, and incited the members
of the meeting to exert themselves to secure an independent
Government." This was proved by a Police officer who had
attended the meeting and taken notes of the speech.
The learned Judges held that there was "nothing in the
charges, as stated in the notice, which would bring the case
within section 108," and accordingly set aside "the order of
the Magistrate.
The reasons stated were as follows : — ' ' The exact words
used by the petitioner cannot be ascertained, but the District
Magistrate of Khulna has found that the words used are sub-
LATEPv PREVENTIVE MEASURES. 215
stantially the same as given in the notice. Looking, however,
to the substance only, and not to the exact words, there is
nothing which would bring the case within section 124A of the
Indian Penal Code, and therefore section 108 of the Criminal
Procedure Code." " The word which it is said was actually
used is ' Swaraj.'' The words ' independent government ' were
not used." " The word ' Sivaraj,'' if it was used, does not
necessarily mean government of the country to the exclusion
of the present Government but its ordinary acceptance is
' home rule ' under the Government. The vernacular word
used, if literally translated, would mean self-govermnent, but
self-government would not necessarily mean the exclusion of
the present Government or independence."
.Justice Mitra's interpretation of the term ' Stvaraj ' must
be compared with the more recent renderings of the same
word by Sir A. White and Justice Miller (32 Mad., 3), and by
Justice Chandavarkar (34 Bom., 394). These have been already
discussed in a previous chapter (see Ch. xii).
In the latter case, Emperor v. Vaman (11 Bom. L. R., 743),
the petitioner Avas a pleader of the District Court at Nasik.
He moved the High Court to set aside an order of the District
Magistrate of Nasik, made under section 108, directing him to
execute a personal recognisance for Rs. 2,000, with two sureties
of Rs. 1,000 each, to be of good behaviour for one year. The
speeches in respect of which the proceeding was taken, had
been delivered at public meetings on six different occasions,
between the 5th February 1907 and the 5th September 1908.
The information by the Police was filed before the District
Magistrate on the 10th December following. The evidence of
the speeches, as in the former case, was furnished by Police
witnesses. The matter came on for hearing before Justice
Chandavarkar, A. C. J., and Justice Heaton, on the 9th July
1909.
In commenting on the scope of this provision, the
learned Judges said : — ' ' The provisions of Chapter VIII of the
Code are no doubt preventive in their scope and object, and
are obviously aimed at persons who are a danger to the public
by reason of the commission by them of certain ofEences. The
test under section 108 is whether the person proceeded against
216 THE LAW OF SEDITION.
has been disseminating seditious matter, and whether there is
any fear of a repetition of the offence. In each case that is
a question of fact, which must be determined with reference to
the antecedents of the person, and other surrounding circum-
stances."
As to the method of proving the speeches, their lordships
said: — "It is complained that the sole evidence against the
petitioner is tbat of Police reports, and these were not admis-
sible. This objection was bub faintly pressed, and is clearly
untenable. The Police officers who wrote those reports have
been examined as witnesses for the Crown. The reports, to
the correctness of which they have sworn, were written soon
after they had heard the speeches, with the help of notes taken
down at the meetings where .those speeches had been delivered.
The reports were admissible for the purpose of refreshing the
memory of the witnesses w^ho had made them, and they have
been admitted and used for that purpose only. But it was
said that these reports should not be relied on because they
are not verbatim, and the whole speeches are not before the
Court. The witnesses, however, have given on oath the words
or expressions charged as seditious, and the context in which
they were uttered."
In conclusion their lordships said: — "If the words re-
ported were uttered, it is impossible to make out in what
innocent context they could have been used ; and the peti-
tioner has not ventured to say they were not uttered. His
denial before the Magistrate has been that the reports are not
full, and are inaccurate — a vague plea. We agree with the
District Magistrate in the conclusions at which he has arrived,
and uphold his order as one fully justified by the facts of the
case. The rule is discharged."
CHAPTER XIX.
KECENT PREVENTIVE LEGISLATION.
It has been seen that the year 1898 was memorable for the
introduction of two legislative measures directed against sedi-
tion, the one of a penal, and the other of a preventive character.
Act IV of 1898 was passed to amend the general law of sedition
and cognate offences, while Act V introduced concurrently a
special procedure founded on the principle of personal security.
These remedies would seem to have been unavailing, for in 1907
the Government were compelled to resort to fresh legislation.
The next measure was directed against seditious oratory.
On the 18th October, 1907, a Bill was introduced by Sir Harvey
Adamson " to make better provision for the prevention of
meetings likely to promote sedition, or to cause a disturbance
of public tranquillity."
In explaining the measure he said : — ' ' This Bill is founded
on, and is a sequel to, the ' Regulation of Meetings Ordinance,
1907.' The Ordinance was enacted in May last on account of
the acute disorder that prevailed in the Punjab and in Eastern
Bengal. The limit of the life of an Ordinance is six months,
and it will in natural course expire on the 10th November.
We had hoped that the need for an enactment of this kind
would cease before the Ordinance expired, but in this hope we
have been disappointed. It has become painfully apparent
that persistent attempts continue to be made to promote sedi-
tion, and to cause such ill-feeling as is calculated to disturb the
public tranquillity, and that these attempts are not confined to
the two provinces which came under the scope of the Ordinance.
The Bill which I have introduced extends to the whole of British
India, but its operation is restricted to such provinces as the
Governor-General in Council may from time to time notify, and
•even within these provinces the operation is restricted to such
areas as the Local Government may declare to be proclaimed
areas. It is not necessary for me to reiterate the provisions of
the Ordinance, which has already been before the public for
218 THE LAW OF SEDITION.
some months. Suffice it to say that the Ordinance gave power
to prohibit only such meetings as, on a scrutiny of the circum-
stances, a responsible officer believed to be likely to promote
sedition or disaffection, or to cause a disturbance of the public
tranquillity. And a chief object of the Ordinance was not to
prohibit public meetings, but to insure that our officers should
have admission to all public meetings, so that evidence might be
available if the proceedings were unlawful. These also are the-
principles of the Bill."
"The Government of India," the Hon'ble Member added,
"have all along recognised that unrest is not solely the outcome
of seditious agitation, but has its basis on the natural aspirations
of educated Indians. To meet these aspirations and to associate
Indians more closely in the administration of the country we
formulated a large and generous scheme of reform which is now
before the public for criticism. With this earnest of our desire
to meet grievances we had hoped that the necessity for repres-
sion would cease. But as time rolled on it became more and
more apparent that such hopes were doomed to disappoint-
ment, that we had to deal with a section of irreconcilables, and
that it would be necessary to continue the principles of the
Ordinance as substantive law. The recognition of a necessity
for legislation involved also a recognition of the necessity that
there should be no hiatus, and that the substantive law should be-
ready to come into operation when the Ordinance expired."
When the Bill was before the Council on the 1st November,
for final consideration, the Hon'ble Member, in answer to the
objection raised by the opponents of the measure that it was
wholly unnecessary, said: — "As regards the necessity, I almost
feel that I should apologise for wasting the time of the Council,
for the course of events during the past few months has surely
been sufficient, without words of mine, to prove to reasonable
men that a preventive measure is necessary. The party of ex-
treme agitation, at least so far as they consist of men of matured
understanding, may be comparatively few, but they exercise a
baneful influence. They are teaching the schoolboys and stu-
dents of the country that the Government as established in India,
is a government of despots, whose only desire is to enrich them-
selves and to impoverish and depopulate the country. They are
RECE^•T PREVENTIVE LEGISLATION. 219
teaching the younger generation, who in a few years will, in the
natural course of affairs, take a large share in the administration
of India, that that administration is one of chicanery and deceit.
It is no light thing that by the action and avowed policy of
this disloyal party, the masses of the common people, who are
contented and law-abiding when left to their own devices, but
whose natures contain elements that are easily stirred to violence,
have been excited by plausible lies to plunge the country into
disorder. Nor is it a light thing that determined attempts
have been made to seduce the police and even the native army
from its allegiance. The whole aim of the seditious party is to
subvert the government of the country. But I will not content
myself with general statements. I will take up the challenge,
and will show that in every part of India where seditious oratory
has been poured on the people during the past eight months,
the immediate result has been grave lawlessness and disorder. "
The Hon'ble Member then referred to a large number of
instances of serious disturbances in various parts of India. " In
Calcutta," he said, " there had been meetings almost daily since
the beginning of August, and a stream of seditious oratory was
poured forth on the town. The police were urged to forsake
their duty, the people vv'ere incited to attack the police, especially
the European police, and students were advised to arm them-
selves with lathis — advice which they accepted. The result
was that disturbances took place on August 7th and 26th,
September 9th, and October 2nd to 5th, which became so serious
that the authorities were compelled to take extraordinary action
under section 144 of the Criminal Procedure Code in restraint
of public meetings."
"Ill Western countiies," he continued, "public sentiment
is against the breakers of the law. If in a European country
treason were preached at a public meeting many of those present
would, from patriotic motives, come forward and denounce, and
testify against the traitors. But what happens in India ? It
may be a moral certainty that sedition was preached, but no
witnesses of respectability are to be found. That is the reason
why in India we cannot rely on prosecutions, and are obliged
to resort to preventive measures which entail inconvenience.
The truth is that India under British government has enjoyed a
220 THE LAW OF SEDITION.
liberty — whether ia the press or on the platform — that has beeu
given to no other country in the world except England. That
liberty has degenerated into a license which Avould not for a
moment be tolerated in any country in the world — even in
England. This abuse of freedom not only retards progress, but
it threatens to engulph India in anarchy and riotousness, and
no government on earth — unless it abnegated its functions —
could dare to leave such an evil unchecked."
So much for the necessity for jjreventive measures. The
Hon'ble Member next dealt with the various clauses of the
Bill in detail, pointing out the numerous safeguards against
abuse of its provisions, and observed: — "Any contention,
therefore that the Bill allows an}' dubious or questionable inter-
ference by the police falls completely to the ground. The
effect of the operative clauses of the Bill may be summed up
in three sentences, — (1) they require notice to be given of the
intention to hold public meetings for the discussion of political
topics in order that accurate reports of the proceedings may be
obtained ; (2) they enable officers onlj^ of the highest standing
to prohibit seditious public meetings ; (3) they completely ex-
clude dubious action on the part of the police."
"The Hon'ble Members who oppose the Bill,"' he said in
conclusion, "do not deny that there has been a considerable
amount of seditious platform oratory. They cannot but admit
that inflammatory oratorj^ working on the minds of an ignorant
and excitable people must be a grave source of danger. Their
criticism is rather destructive than constructive, but I gather
that rather than risk any interference with liberty they would
let matters drift, and let sedition run its course, in the hope
that things will eventually right themselves. I may point out
that this was the policy followed for many years in respect of
the native Press. In Bengal for over thirty years sedition in
the Press was neither punished nor prevented. During the
whole of this time the dissemination of sedition in the Press
never ceased. Did the forbearance of Government lead to any
good result ? On the contrary the native Press went from
bad to worse, until now, when the evil that it does can be
ignored no longer, it seems that it is almost impossible by the
strictest enforcement of the criminal law to stem a tide of sedi-
RECENT PREVENTIVE LEGISLATION. 221
tion, which by inaction has been allowed to increase to enormous
proportions. Can it be doubted that the same result will follow
in the case of seditious platform oratory, if we do not take
timely measures to check it ? "
Sir Edward Baker, in supporting the Bill, said : — "We have
been told to-day with characteristic force and eloquence that
there is little or no sedition in India, and that those persons
whose acts have led to the present legislation are a class in-
significant both in numbers and influence. A similar argument
has I think been used in a part of the Press, but, so far as
I have observed, it only acquired prominence after it became
known that legislation was in contemplation. It is a matter
of common knowledge that there is a section of the Press,
published largely but not exclusively in Bengal, which has
openly endeavoured to excite hatred of the Government, and
advocated itssubversion,— which has sought to make the admin-
istration impossible, and has denounced all Indian servants
of the State as traitors to their country. During the last two or
three years, perhaps even during the last few months, these or-
gans have increased in nuiubers, in circulation, and in the viru-
lence and audacity of their attacks on the established order.
If those by whom these journals are supported are really so insig-
nificant and negligible as is represented, how is it that the latter
are able to appeal to so large and expanding a circle of readers ?
Sedition in the Press can bs reached by the ordinary law of
the land. But that is only one weapon in the armoury of dis-.
order. Not less dangerous, but more difficult to touch, is the
seditious harangue, delivered often by men who are skilled ia
the arts of the demagogue, not for the legitimate ventilation of
any real or fancied grievance, but to work upon the immature,
ill-informed minds of their hearers, to instil into them feelings
of hatred and hostility towards the State, and to incite them
to the open use of force and violence for its disruption. Are
we to believe that these addresses always fall on deaf, un-
willing ears ? I wish that I could think so. But I fear that a.
sufficient answer is to be found in the rioting and disorder which
have only too often followed in their train, in the grotesque
yet mischievous organisations known as the national volunteers,
in the forcible interference with the freedom of purchase and sale-
-222 THE LAW OF SEDITION.
of foreign goods, and in the constant resort to social ostracism
of those who adhere to a different way of thinking."
His Excellency Lord Minto, the President, in closing the
proceeding said: — "I am afraid my Hon'ble colleagues have
allowed their enthusiasm for the cause of political reform to
blind them to the necessities of the moment, and that they have
failed to recognise that the first duty of any government is the
maintenance of law and order, and the protection of the people,
entrusted to its charge. They would have us l)elieve that we
have been frightened by a phantom, that we have accepted the
vapounngs of a few agitators as evidence of dangerous sedition,
and that by the Act which w-e have passed we are imputing
disloyalty to the masses of the people of India— that I empha-
tically deny — but at the same time I refuse altogether to minimise
the meaning of the warnings and anxieties of the last few months.
We cannot afford to forget the events of the early spring — ^the
riots at Lahore and gratuitous insults to Europeans, the Pindi
riots, the promulgation of the Ordinance, and, contempora-
neously with all this, a daily story from Eastern Bengal of
assault, of looting, of boycotting, and general lawlessness en-
couraged by agitators, who, with an utter disregard of conse-
quences, no matter how terrible, have by public addresses, by
seditious newspapers, by seditious leaflets, and itinerant secret
agents, lost no opportunity of inflaming the w^orst passions of
racial feeling, and have not hesitated to attempt to tamper
with the loyalty of our magnificent Indian army. The seeds
of sedition have been unscrupulously scattered throughout
India, even amongst the hills of the frontier tribes. We are
grateful that it has fallen on much barren ground, but can no
longer allow the dissemination of unlimited poison. That is
the position the Government of India have had to face. That
is why we have felt compelled to provide ourselves with a
weapon against insidious attacks. The Bill is aimed at the in-
augurators of dangerous sedition, not at political reform, not at
the freedom of speech of the people of India."
The Bill was passed the same day, to operate for a period
of three yesiTS from the 1st November 1907. It has since
however been extended by notification for a further period of
six months and is now^ in force (see A'ppx.).
RECENT PREVENTIVE LEGISLATION. 223
In the following year another preventive measure of an
urgent character was enacted concurrently w-ith the 'Explosive
Substances Act.' This was a "Bill for the prevention of incite-
ments to murder and other offences in newspapers." When
introducing the Bill on the 8th June, 1908, Sir Harvey Adamson
said : — "The Bill is a sequel to the Explosive Substances Bill,
and is intended to meet the same emergency. There are %wo
factors in this emergency, neither of which it is possible to ig-
nore, if the evil is to be adequateh^ dealt with. The first is the
actual making and using of bombs, which has been met by the
Bill which has just been passed into law. The second is the
public incitement to murder and acts of violence carried on
through the medium of an infamous section of the Press.
These two factors are as inseparable as cause and effect. If
you legislate for the effect without legislating for the cause, you
•do nothing. The present Bill is therefore as urgent as the one
with which we have just been dealing. In the opinion of the
•Government of India it is absolutely necessary for the public
safety that it should be passed into law with the utmost possible
despatch. The circumstances which have led to this legislation
are fresh in the minds of all of us. It is therefore not necessary
for me to give a history of the events, of the bomb outrages, and
I am the more disinclined to do so because certain persons
accused in connection with these transactions are still under
trial. There is one point, and only one, in connection with the
proceedings that I am compelled to mention, in order to support
and justify the legislation in which we are engaged. It is the
close connection between the Manicktollah conspirators and a
certain section of the Press. Some have confessed that they
drew their inspiration from newspaper writings. Among others
the young man who threw the bomb at Mozufferpur has admit-
ted that he was incited by writings in the Yugantar. I will
make no further comments on events which are now suh judice.
Wliat I have stated is taken from proceedings in Courts of
Justice, and is already public property.
"Now turning," the Hon'ble Member continued, " to the
class of newspaper against which this Bill is directed, I find
that the Yugantar has been on five occasions during the past
year the subject of prosecution for the offence of sedition.
224^ THE LAW OP SEDITION.
On four occasions the printer and publisher has been convicted^
and one case is still pending. The authors ut the offending
articles have nover come forth into the light. So far from
being deterred by prosecution, a fresh printer and publisher
has been registered on each occasion of conviction and the
tone of the newspaper has continued unimproved. In spite of
five prosecutions the Yugantar still exists and is as violent as
ever. The tj'^pe of sedition has been incitement to subversion
of British rule by deeds of violence. The policy of the news-
paper has been to court prosecution in order to create pseudo-
martyrs, and thus to enlist sympathy on the side of anarchy,
and it may be presumed that a further inducement was to
increase the circulation of the newspaper by pandering to the
tastes of the depraved. I quote the following extract from
the official translation of an article in the Yugantar which
appeared a few days after the attempt on an officer's life in
Mozufferpur which^ resulted in the terrible death of two ladies."
The Hon'ble Member then (Quoted a passage which was after-
wards the subject of the Yugantar trial already referred to, and
portions of ^vhich were put to the jury by the learned Judge
(see Ch. xiii).
"Two days ago,'' he continued, "I saw a telegram from
Calcutta stating that the Yugantar, which usually appears on
Saturday, had unexpectedly appeared on Friday, that thou-
sands of copies had been struck, and that they were selling at a
rupee a copy. The telegram gave some description of the con-
tents, which in violence outvied any previous issue. I have not
yet received the full translations. I have up to this point con-
fined myself to the Yugantar, because it has already obtained sO'
great a notoriety that nothing that I can say can make it more
notorious. But writings of a similar type abound in other news-
papers, not only in Calcutta but throughout India. I will not
give any of these disreputable papers an advertisement by men'
tioning their names. I will content myself with stating the
substance of articles which I have culled from them. One
article referring to the partition of Bengal states that the
ruthless knife of the butcher has severed in twain the throbbing
body of the mother-land, and makes frantic appeals to all sona
of the soil to combine and avenge the atrocity. Another makes
RECENT PREVENTIVE LEGISLATION. 225
insidious attempts to propagate the cult of Ramdas who instigated
Shivaji to revolt against Moslem rule. Another instigates
Indians to sacrifice their lives and to teach the rulers a bitter
lesson. Another urges the Bengalis and the Gurkhas to join
hands and rebel against the oppression of the bureaucracy.
Another advises the Bengalis to resort to red, as the colour of
revenge, and to sing the hymn of retaliation : ' A hundred
heads for one head, to avenge the murder of the mother-land.'
Another states that a huge sacrificial fire should be lit up
and fed, not with ghee, but with blood. Another advocates
that Indians should make use of blacksmith's tools, lathis ^ and
slings and stones, to overmatch the enemies of their country.
Another says that if by resorting to boycott we can gain our
desires, we can only be said to postpone for the present our
resolve to shed blood. Another says that if we desire indepen-
dence we should be ready to be massacred by our rulers, so that
their sword may become blunt. Another exhorts to die after
killing, as therein the glory of dying will be enhanced. Another
urges the sacrifice of life for liberty, for is it not a fact that Kali
will not be propitiated without blood. Another advocates the
methods of Nihilists and the use of bombs. I might go on for
hours quoting such types as these. To an Englishman who
knows not India, they would appear to be little more than ridi-
culous bombast. But to impressionable and immature minds
in the East, they present an entirely different significance. We
have already seen the terrible effect that they produce on the
youthful student, and they must be judged by Eastern and not
by Western standards. We have striking examples of how
they have converted the timid Bengali into the fanatical Ghazi,
and they are not to be ignored. The difference between the
East and the West in this respect is the difference between drop-
ping a lighted match on a stone floor, and dropping it in a
powder magazine."
"I have quoted," he went on to add, "some of the
dangerous incitements that are published by unscrupulous
newspapers. I have given facts showing the effect which such
wrritings have produced on misguided young men, and I have
shown that prosecution has been tried, and tried again, and has
completely failed to put a stop to this incitement to outrage.
D, LS 15
226 THE LAW OF SEDITION.
Under these circumstances what is the duty of a responsible
government ? Its bounden duty surely is not only to make
adequate provision to punish the perpetrators of outrages that
actually occur, but also to close the fountain head, and to insure
that colleges of anarchy, assassination, rebellion, and violence
are not openly maintained under the guise of newspapers cir-
culated among the public."
The Hon'ble Member then proceeded to explain the pro-
posed provisions. " The present Bill," he said, "is confined
entirely to the emergency which is now facing us. It is intended
to provide a more effective way than prosecution for attempts
tluough newspapers to incite to murder and acts of violence.
It is not meant as a substitute for, but as a supplement to
prosecution. It is directed against newspapers which jiersistently
defy the law, which court prosecution, which set up dummies for
punishment while the real authors lie concealed, and which
establish themselves as schools of anarchy and outrage, with the
object of debauching young and immature minds, and inciting
men to murder, armed revolt, and secret and diabolical schemes
of general assassination. The only way to deal with such news-
papers is to put an end to their existence, and this we propose
to do in the Bill, by giving power to confiscate the printing-press
and to extinguish the newspaper. This is the object of the
present Bill, and these two powers are all the powers that it
contains. Next as regards the means for effecting these ends.
There are two ways in which they can be effected, by exe-
cutive action or by judicial action. The former would be more
prompt, and there are many who have urged us to adopt it. The
latter, however, is more in accordance with the principles of
modern administration, and at the sacrifice it may be, of some
efficiency, we have chosen it. The Bill empowers the Magis-
trate, on application made on behalf of the Local Government,
to take action in respect of the printing-press concerned, when
he is of opinion that a newspaper contains any incitement to
murder, or to an offence under the Explosive Substances Act, or
to an act of violence. The first step is a notice to all concerned
affixed on the place where the printing-press is. The next is the
hearing of the case, which will be in the nature of a criminal
miscellaneous proceeding. Evidence will be given on behalf of
KECENT PREVENTIVE LEGISLATION. 227
the Local Government, and evidence may be tendered by any
-one who opposes the action. The Magistrate will then record a
finding, and if the finding is that the newspaper contained the
incitement alleged, he will proceed to order forfeiture of the
printing-press. He will have the discretion of keeping the
printing-press under attachment during the hearing of the case.
Against an order of forfeiture an appeal will lie to the High
Court, the period of limitation being fifteen days. A further
power is given to the Local Government. When an order of
forfeiture has been passed, the Local Government ma}^ annul the
declaration made by the printer and publisher under the Press
and Registration of Books Act, the effect of which annulment is
that the newspaper will cease to lawfully exist."
His Excellency Lord Minto, the President, summed up the
situation as follows : — " The lamentable incidents at Muzaffar-
pur have sent a thrill of horror throughout India, and have too
clearly warned us that we must be prepared to deal immediately
with an iniquitous conspiracy, and with murderous methods
hitherto unknown to India." " To the best of my belief it has
largely emanated from sources beyond the confines of India.
Its anarchical aims and the outrageous doctrines it inculcates
are entirely new to this country. But unfortunately the seeds
of its wickedness have been sown amongst a strangely im-
pressionable and imitative people — seeds that have been daily
nurtured by a system of seditious wTiting and seditious speaking
of unparallelled virulence, vociferating to beguiled youth that
outrage is the evidence of patriotism and its reward a martyr's
•crown."
" It has been," His Excellency added, " with a heavy sense
of responsibility that the Government of India has recognised
that the law of the land has not been strong enough to enable
us to cope with the present emergency. We have felt that we
must have further powers. We have had two main points
before us— How best to deal -with bomb outrages and the con-
spiracies connected with them ; and how to annihilate the evil
influence which has done so much to inspire them. The machin-
ery we have decided to adopt is before you in two Bills. In
them, we have, after careful consideration, empowered judicial
rather than executive procedure."
228 THE LAV/ OF SEDITION.
- "I look upon to-day's legislation as exceptional, as framed)
to meet dangerous emergencies, and as regards the Newspaper
Bill to give powers to deal with a particular class of criminal
printed matter. It is quite possible our Bills may not be strong
enough, and in that case we shall not fail to amend them. But
the Newspaper Bill in no way takes the place of a General
Press Act, and it in no way ties our hands as to the future intro-
duction of such an Act. In my opinion a further general control
of the Press in India is imperatively necessary. I believe it
would be welcomed by the best Indian newspapers. They have
recognised the evil of unbridled journalistic freedom under Indian
conditions — conditions entirely different from those existing at
home, where public opinion, based on the teachings of centuries
of constitutional government, would be ever ready to refuse or
to ridicule such unwholesome vapourings as are daily furnished
to the people of India. India is not ripe for complete freedom
of the Press. It is unfair upon her people that for daily informa-
tion, such as it is, they should be dependent upon unscrupulous
caterers of literary poison. We are called upon to regulate its
sale. No exaggerated respect for principles of English freedom,
totally unadapted to Indian surroundings, can justify us in
allowing the poison to work its will."
The Bill was then passed as Act VII of 1908 and is now in
force (see Appx.).
CHAPTER XX.
THE LATEST PRESS LAW.
The views expressed by His Excellency Lord Minto at the
€ouncil Meeting of the 8th. of June 1908, as to the 'imperative
necessity ' for a General Press Act for India, took effect in a new
measure, which, without interfering with the operation of exist-
ing laws, either penal or preventive, was designed to check the
evil complained of. On the 4th February, 1910, a Bill was intro-
duced " to provide for the better control of the Indian Press."
The scope and character of this important measure, as well as
the circumstances which contributed to induce special legislation
may be ascertained from the exhaustive speech of the Hon'ble
Member in charge of the Bill.
Sir Herbert Risley in introducing the measure said : —
^ ' In the first place let me state as simply as possible what the Bill
proposes to do. It will be convenient if I first describe the kind
of matter which may not be published. This is set out in clause
4 of the Bill, under six separate heads. The first of these re-
lates to incitements to murder, or to any offence under tha Ex-
plosive Substances Act, or to any actual violence. Incitements
of this nature are already covered by the Newspapers (Incite-
ments to Offences) Act of 1908, but we think it advisable to
include them in this Bill, in order that we may, if necessary, take
action of a less severe kind than that prescribed by the Act of
1908. The next kind of writing which is forbidden is that which
is likely to seduce any officer, soldier or sailor from his allegiance
or his duty. That calls for no comment : it is obvious that
such writings must be dangerous to the public welfare.
' ' Then under head (c) we come to writings which are likely
to bring into hatred or contempt His Majesty, or the Govern-
ment, or any lawful authority, or any Native Prince or Chief
under the suzerainty of His Majesty, or which are likely to ex-
cite disaffection against His Majesty, or the Government, or suCh
Princes or Chiefs, or to excite antipathy between members of
different races, castes, classes, religions or sects. The greater
230 THE LAW OF SEDITION.
{)ai't of this head is covered by the terms of sectious 12dA and
153A of the Indian Penal Code. But we have made two-
additions of some importance. In the first place we have
included what I may describe as the preaching of sedition against
the Princes or Chiefs of our Native States. We have had not a
few instances of newspapers published in British India con-
taining seditious matter of that kind. The Government of India
cannot tolerate this. They cannot allow their territories to be
used as a safe asylum from which attacks can be launched upon
Indian Princes. The other direction in which this heading goei^
beyond the terms of the two sections I have (luoted, is that
it includes the bringing of any lawful authority into hatred
or contempt. There have been many venomous attacks upon.
Magistrates and Judges, even upon Judges of the High Courts.
and this must be prevented.
' ' The fourth heading relates to intimidation and black-
mailing. It will cover the case of the blackmailing of Indian.
Princes against which the corresponding clause of Lord Lytton's
Act of 1878 was directed. The fifth heading prohibits mattei
which is likely to encourage or incite any person to interfere
with the administration of the law, or with the maintenance of
law and order. Under the Indian Criminal Law Amendment
Act of 1908, the Government have power to declare that an
association which has these objects is an unlawful association,
and a newspaper should not be allowed to do what an associa-
tion may not do. The last sub-clause deals with the intimida-
tion of public servants, and is taken verbatim from the Act of
1878. The protection which this sub-clause will give is certainly
more necessary now than it was thirty years ago."
"' I will now show," the Hon'ble Member continued, " how
we propose to prevent the publication of matter of the kind I
have described. Under the Press and Ptegistration of Books
Act of 1867 every person who wishes to keep a press for the print-
ing of books or papers must make a declaration to that effect
before a Magistrate. Another provision of that Act requires
that every printer and publisher of a newspaper must make a
similar declaration. These declarations are registered, and are
available for the information of any one who wishes to take
proceedings against the press or the newspaper. Clause 3 of
TUE LATEST PKESS LAW. 231
our Bill provides that every person, who makes a declaration
hereafter as the keeper of a press, must deposit security for
an amount to be fixed in each case by the Magistrate, but not
being less than Ks. 500 or more than Rs. 5,000. Clause 8 con-
tains a similar provision in respect of the publisher of a news-
paper. The printer of a newspaper is not required to deposit
security, as his case is already covered by the provision requiring
security from the person who keeps the press. These provisions,
as I have said, apply only to future registrations. In the
case of existing presses and existing newspapers no security can
be demanded until the press or paper offends by printing or
publishing matter of the prohibited kind. But when a press or
newspaper has printed or published such matter, the Local
Government may at once call upon the person registered as the
keeper of the press, or the publisher of the newspaper, to
deposit security to an amount to be fixed by the Local Govern-
ment, subject to the same limits as are prescribed for fresh
registration."
"The next stage in the procedtu'c provided by the Bill,"
he continued, ' ' is that the Local Government can order the for-
feiture of the security deposited, if it appears that the press has
printed, or the newspaper has published, any matter of the
prohibited kind. If the keeper of the press, or the publisher
of the newspaper wishes to continue his business after such an
order has been passed, he is at liberty to do so, but he must make
a fresh declaration under the Press and Registration of Books
Act, and the Magistrate may then demand enhanced security
up to a maximum of Rs. 10,000. Should the keeper of a presH,
or the publisher of a newspaper, again publish prohibited mattei-
after enhanced security has been taken, the Local Government
may order the forfeiture of the enhanced security in the case of
the newspaper, and of both security and press in the case of the
printing-press. No keeper of a press who is registered at
the time of the passing of this Bill will be affected by its
provisions, unless and until he offends by printing prohibited
matter ; but if he does that, he may be called upon to deposit
security. If he again offends, his security may be forfeited,
while for a third offence both security and press may be
forfeited. For persons who are now registered as publisheiij
232 THE LAW or SEDITION.
of newspapers the procedure is the same. That is to say, no
interference at all until one ofTence is committed ; then a
demand for security, which may be forfeited for the second
offence ; next the taking of enhanced security, and the for-
feiture of this enhanced security for the third offence. In the
case of new registration security is demanded from the begin-
ning. This is necessary to provide against an evasion of the
law by new registrations which are new only in name."
" It will be readily admitted," he added, " that if we take
security at all, we must take it from the keepers of printing-
presses ; for the law, to be effective, must cover not only news-
papers, but also books, pamphlets, leaflets, and every other kind
of document by which seditious matter can be disseminated.
But it may be asked, why take from the publisher of a news-
paper, in addition to taking it from the keepers of presses ?
The answer is that we cannot always be certain of getting at the
newspaper through its press, for difficulties have arisen in ascer-
taining at what press a newspaper is printed. Many of the
small newspapers, which are notorious offenders, have no
press of their own, but are printed at a job press, which may be
changed from month to month, and it is by no means easy to
learn with certainty at which particular press an offending
issue of the newspaper was published. Moreover, if security
were not demanded from the publisher of a newspaper, he
might continue to offend with no greater penalty than the
demanding of security from each of the different presses at
which successive issues of his journal were printed. We have
fixed a minimum as well as a maximum for the security to be
demanded, in order to give an indication which will guide officers
in all ordinary cases. But to meet the exceptional cases of the
petty press, which publishes only trade circulars, bill headings
and the like, and the case of the school cr college magazine,
and other similar publications which are not newspapers in
the ordinary sense of the term, though they cannot be excluded
from the definition — in order to meet these cases, we have
given the Magistrate power to take reduced security, or to
dispense with security altogether."
"The provisions which I have described," he continued,
' ' so far relate to the cases of newspapers and of matter which
THE LATEST PRESS LAW. -^^
is printed at presses that are known. But we have also to deal
with books and pamphlets, especially the latter^ which are
printed out of India, or secretly in India. To meet these
cases power is taken for the Local Government to declare by
notification that such publications are forfeited, and to issue
search-warrants for their discovery. In aid of this provision
power is also given to customs officials to detain suspected
packages pending examination of their contents by the Local
Government, and to post-office officials to open and detain,
with a like object, any suspected packet which has been
transmitted by post. We have also prohibited the trans-
mission by post of any newspaper in respect of which the
necessary declaration and deposit of security, v/hen required,
have not been made. Finally, we have laid an obligation on
the printer of a newspaper to deliver to Government, at the
time of publication, two copies of every issue. This has been
rendered necessary by the failure of certain newspaper pro-
prietors to send punctually the copies for which the Govern-
ment subscribe, while in one case a subscription equal to ten
times the ordinary subscription w^as demanded from the
Government."
The Hon'ble Member then proceeded to describe the safe-
guards provided in the proposed measure against any improper
use of its provisions. " So far," he said, " I have dealt only
with the powers which are given by the Act. I will nov: turn
to the check which we have provided. This consists of an ap-
peal to a special tribunal of three Judges of the High Court
against any order of forfeiture passed by the Government.
If it appears to the High Court that the matter, in respect
of which the order was passed, does not come within the terms
of section i of this Bill, then the High Court will set aside the
order of forfeiture. I think it wall be admitted that, that is a
very complete check upon any hasty or improper action by a
Local Government. We have, therefore, barred all other legal
remedies. There are two other clauses that I must mention.
One provides that the penalty for keeping a press, or publish-
ing a newspaper, without making the deposit of security,
shall be the same as that imposed upon a person who keeps a
press or publishes a newspaper, without making the declaration
234 THE LAW OF SEDITION.
required by the Press and Registration of Books Act.
The other is a provision which saves the operation of other
laws."
"I have explained," he added, "the scope of the Bill,
what it proposes to do. I will now mention its limitations,
what it does not propose to do. lu the first place it does-
not create a censorship. It imposes no antecedent restraint on
the Press : a man may publish what he pleases. He has the-
widest range for every form of intellectual activity within
the limits laid down by the law. Secondly, it is not, like
the Press Act of 1878, a purely executive measure. The
initiative, indeed, rests with the Executive Government, but
ample secuiity against hasty or arbitrary action is provided,
in the form of what is virtually an appeal to a highly com-
petent judicial authority. Thirdly, it is not a measure of
universal licensing, with power to the Government to withdraw
or refuse a license at discretion. The liberty of unlicensed
printing, for which Milton pleaded three centuries and a half
ago, and at the time pleaded in vain, is untouched by this Bill.
Security is demanded only from papers established after the
passing of the Act. That is necessary to guard against the-
Protean changes of identity, of which we have had illustrations
in Bengal. But security is one thing, and a system of licensing
is another. Security may rightly be required in the interests
of the community in order to guarantee that those, who
undertake for the first time the important task of instructing
the people regarding public affairs, shall at any rate be fully
aware of the responsibility they incur. I do not set much
store by precedents and parallels drawn from foreign sources.
As Lord Morley has pointed out, no political principle what-
ever is capable of application in every sort of circumstances
without reference to conditions in every place and at every
time. Each country has its own problems, and must solve them
in its own way. India has hers, of which this is one of the grav-
est. We too must travel on our own road with such guidance
as our necessities give us ; we cannot walk by borrowed light."
The Hon'ble Member proceeded in the next place to ex-
plain the considerations which operated to produce such a mea-
sure, and the reasons for special legislation. '' The Press in>
THE LATEST PRESS LAW. 235-
ludia," he said, "has been free, except during two periods,
for the last seventy-five years. The two periods which I have
referred to were, first the period of the Mutiny, when the entire
J*ress was under absolute control for one year and no more;
and the second was from 1878 to 1881, when a portion of the
Press was subject to the virtually nominal control imposed by the
Vernacular Press Act of 1878. I will not touch upon the earlier
years, but I will begin about the middle of the period which
I have marked off, and I will endeavour to show what use the
Press has made in comparatively recent times of Sir Charles
Metcalfe's famous concession. Thirty-three years ago I was
present, as Under-Secretary to the Government of Bengal, at a
notable Durbar held by Sir Ashley Eden at Belvedere on the
12th August 1877. In addressing that Durbar the Lieutenant-
Governor denounced in strong terms the disloyalty and sedition
which were freqviently published in the native press of Bengal.
Even then rank treason was preached, and a war of independence
was talked of, and Sir Ashley Eden thought it necessary to warn
those vrhom he addressed that the character of the vernacular
Press was creating an unfavourable impression, in many quar-
ters, of the loyalty of the Bengalis. The warning was not heed-
ed, and in the following year the tone and tendencies of the Presa
led to the passing of the Act of 1878, the object of which, like
the object of the present Bill, was to prevent, not to punish
sedition. As every one knows, the Act was in force for only
three years, during which time recourse was only once had to
its provisions. Its defects from our present point of view are
palpable. It applied only to the vernacular Press and left un-
touched journals published in English, whether owned by Indians
or by Europeans. Its machinery was purely executive, judicial
intervention being expressly excluded ; and it contained an im-
practicable provision for censorship which was soon repealed.
The whole Act was repealed in 1881, and from that time till
now the Press has been left to the operation of the ordinary law .
Up to the year 1907 the policy of the Government was one of
extreme forbearance, and prosecutions were of rare occurrence.
Indeed, during the 37 years from 1870 to 1907 the law was put in
motion only sixteen times. Among these cases, there is not a
single case of acquittal. On two occasions the jury disagreed.
236 THE LAW OF SEDITION.
but the offenders would have been tried again, if Governmens
bad not thought fit to accept their apologises. I have described
our forbearance as extreme ; many people may think it exces-
sive. But the ingrained instincts of all Englishmen are averse
to interference with the Press, even by way of prosecution, and
we continued to hope that time and education would bring wis-
dom. Our hope was vain ; the Press did not mend its ways.
It went from bad to worse, and at length it produced its inevit-
able results in the cruel and oppressive methods of the boycott.
It was clear, moreover, that matters were not going to stop
there, and that worse things were in store for us. As every one
knows, we had not long to wait. Accordingly on the 3rd June,
1907, after careful and anxious consideration, the Government
of India issued the following resolution : —
' Certain circumstances attending the recent outbreaks
of lawlessness in the Punjab and Eastern Bengal have forced
upon the attention of the Government of India the deliberate
efforts made by a number of newspapers, both English and verna-
cular, to inflame the minds of the people, to encourage ill-wili
between classes, to promote active hostility to the Government,
and to disturb the public tranquillity in many different ways.
The Governor-General has no desire whatever to restrict the
legitimate liberty of the Press to criticise the action of the Govern-
ment, and he would be most reluctant to curtail the freedom
of the many well-conducted papers because of the misbehaviour
of a few disloyal journals. But he is responsible for the main-
tenance of law and order among a vast and heterogeneous popu-
lation, and he is unable to tolerate the publication of writings
which tend to arouse the disorderly'' elements of society, and to
incite them to concerted action against the Government. On
these grounds he has determined that the dissemination of sedi-
tion, and the promotion of ill-Avill between classes must be re-
Jiressed by firm and sustained action under the penal law.
Accordingly, in supersession of previous orders on the sub-
ject, His Excellency in Council empowers Local Governments to
institute prosecutions in consultation with their legal advisers,
in all cases where the law has been wilfully infringed. He hopes
that the warning now given may, in great measure, avert the
necessity for numerous prosecutions, but if this hope should
THE LATEST PRESS LAW. 23T
tmliappily not be realised^ he relies upon the local authorities to
deal with the evil efiectively.' ■
' ' Up to the end of last year,' ' he continued, ' ' forty-seven
prosecutions had been undertaken under these orders. Nob
one of these cases has failed, although in some instances the
editor, manager, or proprietor has escaped, and only the
registered printer or publisher has been convicted, while in others
the Government have accepted an apology and withdrawn the
prosecutions. Nevertheless we have to acknowledge defeat.
We have succeeded in the minor object of punishing a certain
number of offenders ; we have failed in the major, the vital, the
all-important object of curing a grave evil. We have proved
that the law as it stands is sufficient to enable convictions for
sedition to be obtained ; but we have also proved that it was not
sufficient to restrain the Press within the limits of legitimate
discussion. In spite of our successful prosecutions, we see the
most influential and most widely read portion of the Indian
Press incessantly occupied in rendering the Government by law
established odious in the sight of the Indian people. ' The Gov-
ernment is foreign, and therefore selfish and tyrannical. It
drains the country of its wealth ; it has impoverished the people,
and brought about famine on a scale and with a frequency un-
known before. Its public works, roads, railways, and canals
have generated malaria. It has produced plague by poisoning
wells in order to reduce the population that has to be held in
subjection. It has deprived the Indian peasant of his land, the
Indian artisan of his industry, and the Indian merchant of his
trade. It has destroyed religion by its godless system of educa-
tion. It seeks to destroy caste, by polluting maliciously and
of set purpose the salt and sugar that men eat, and the cloth
that they wear. It allows Indians to be ill-treated in British
colonies. It levies heavy taxes and spends them on the army.
It pays high salaries to Englishmen, and employs Indians only
in the worst paid posts. In short, it has enslaved a whole-
people, who are now struggling to be free.'
' ' My enumeration, ' ' he added, ' ' may not be exhaustive}
but these are some of the statements that are now being implant-
ed as axioms in the minds of the rising generation of educated
youths, the source from which we recruit the great body of
238 THE LAW OF SEDITIOlSr.
civil officials wlio administer India. Every day the Press pro-
claims, openly, or by suggestion, or allusion, that the only cure
for the ills of India is independence from foreign rule, independ-
ence to be won by heroic deeds, self-sacrifice, martyrdom on the
part of the young, in any case by some form of violence.
Hindu mythology, ancient and modern history, and more
especially the European literature of re%'olution, are ransacked
to furnish examples that justify revolt and proclaim its inevitable
success. The methods of guerilla warfare as practised in Cir-
cassia, Spain, and South Africa; Mazzini's gospel of political
assassination ; Kossuth's most violent doctrines ; the doings of
Russian Nihilists ; the murder of the Marquis Ito ; the dialogue
between Arjuna and Krishna in the Gita, a book that is to Hin-
dus what the Imitation of Christ is to emotional Christians —
all these are pressed into the service of inflaming impressionable
minds. The last instance is perhaps the worst. I can imagine
no more wicked desecration than that the sacrilegious hand of
the anarchist should be laid upon the Indian Song of Songs, and
that a masterpiece of transcendental philosophy and religious
ecstasy should be perverted to the ])ase uses of preaching poli-
tical murder."
"Sedition," he continued, "has the monopoly of its au-
dience, and that audience is large, and is increasing daily. No
means are left untried to swell its numbers, and to infect the
masses of the people. The peaceful life of the village has been
invaded by youthful enthusiasts, who read out to an illiterate
audience, attracted by natural curiosity, articles preaching the
doctrines which I have described. Emissaries disguised as
religious devotees travel about the country, and spread the
gospel of anarchy among simple folk who believe that whatever
is printed must be true. Worst of all, attempts are being made
to enlist the women of India on the side of rebellion, by dissem-
inating in the zenana, libels upon the Government — among them
that infamous story about the introduction of plague. The
consequences of this ever-flowing stream of slander and in-
citement to outrage are now upon us. What was dimly foreseen
a few years ago has actually come to pass. We are at the present
moment confronted with a murderous conspiracy, whose aim
is to subvert the Government of the country, and to make
THE LATEST PRESS LAW. 239
British rule impossible by establishing general terrorism. Their
■organisation is effective ^nd far-reaching ; their numbers are
•believed to be considerable ; the leaders work in secret and are
iblindly obeyed by their youthful followers. The method they
favour, at present, is political assassination ; the method of
Mazzini in his worst moods. Already they have a long score
of murders, or attempted murders to their account. These
things are the natural and necessary consequence of the
teachings of certain journals. They have jjrepared the soil in
^vhich anarchy flourishes ; tbe}'^ have sown the seed, and they
are answerable for the crop. This is no mere general statement,
the chain of causation is clear. Not only does the campaign of
violence date from the change in tone of the Pres?, but specific
outbursts of incitement have been followed by specific outrages.' '
In conclusion, the Hon'ble Member said: — "I appeal to
the Council to give their cordial approval to this Bill. It is
called for in the interests of the State, of our officers, both Indian
and European, and most of all in the interests of the rising
generation of young men. In this matter, indeed, the interests
of the State and the interests of the people are one and the same.
If it is good for India that British rule should continue, it is
equally essential that the lelations between the Government and
the educated community should be cordial and intimate, and
that cannot long be the case if the organs of that community lay
themselves out to embitter those relations in every sort of way,
and to create a permanent atmosphere of latent and often open
hostility. There is plenty of work in India waiting to be done,
tut it never will be done if the energies of the educated classes
-are wasted in incessant abuse and suspicion of Government."
These are the chief passages of a memorable and important
speech. Its value lies not merely in its lucid exposition of the
provisions of the Press Act, but mainly perhaps in the vivid
picture it affords of the extraordinary conditions which called
it forth, and of the recent political situation in India, of which
it is destined to remain a faithful and permanent record.
The Bill, which strangely enough was the, first measure
of the new and enlarged Legislative Council, was passed on the
8th February, and takes its place in the Indian Statute-book
as Act I of 1910 (see Appx.).
240 THE LAW OF SEDITION.
After so lucid an exposition of its provisions further com-
ment on the Act is unnecessary. It is worth while, however,
to consider how far th.e new measure aSects the operation of
existing laws. Section 26 of this Act, like section 10 of the
Nev;spapers Act (VII of 1908), expressly provides that it shall
in no way interfere with the prosecution of offenders under the
provisions of other laws. As regards the Penal Code, therefore,
it may be said that its penaJ provisions against sedition and
its cot^nate offences remain unaffected. As the initiative rests-
with the Government in any case, it is optional with them
cither to prosecute under the Penal Code, or to resort to the
machinery of the Press Act, as they may think fit. But even
so, there seems to be no actual bar to the application of both
remedies, either concurrently or consecutively. Then again,
there are cases, e.g., where a press is unregistered and therefore
unknown, where prosecution alone could be resorted to and the
Press Act would be of little avail.
It is to be observed, moreover, that the Act, being a Press-
Act, is limited in its operation to the Press, and can only be
applied to cases where sedition is disseminated through that
medium. In other words, it applies only to written sedition
or ' seditious libel.' It does not touch any of the other methods
.)f dissemination specified in sections 124A and 153A. The
i:«latform and the stage are beyond its influence.
On the other hand, as regards Preventive measures it may
1)8 said that the Press Act cannot affect the operation of such
measures as the ' Dramatic Performances Act of 1876' or the
' Prevention of Seditious Meetings Act of 1907,' for they are
not in 'pari materia.
As regards the ' Newspapers (Incitements to Offences) Act
of 1908,' it may be said to have concurrent operation^ for it
provides an alternative procedure.
As to section 108 of the Criminal Procedure Code (Act
V of 1898), it has concurrent operation also, but only so far
as the Press is concerned. That section, it will be seen, has a
much wider scope, for it is framed to cover oral as well as written
sedition.
As regards the ' Press and Eegistration of Books Act of
1 867,' it may be said to work conjointly.
APPENDIX.
PRESS AND REGISTRATION OF BOOKS ACT.
ACT XXV OF 1867.
AS AMENDED BY ACT X OF 1890.
An Act for the regulation of Printing-presses and New^-
]>af crs, for the preservation of copies of books printed in British
India, and for the registration of such books.
WHEREAS it is expedient to provide for the regulation of
printing-presses and of periodicals contain-
Preamble. . t i ■ i
ing news, lor the preservation of copies
of every book printed or lithographed in British India, and for
the registration of such books ; It is hereby enacted as follows : —
PART I.
Preliminary.
^ ,. , 1. In thisAct, unless there shall be some-
luterpretntion-clause. . , , . ,
thing repugnant mthe subject or context, — ■
" book " includes every volume, part or division of a volume,
.. ^ „ and pamphlet, in any language, and every
sheet of music, map, chart or plan separately
printed or lithographed :
' ' British India ' ' means the territories which are or shall
" British India ' ^® vested in Her Majesty or Her Successors
by the Statute 21 & 22 Vict., cap. 106 (A71
Act for the better government of India) * * * * :
Magistrate ' ' means any person exercising the full powers
,.„.,,„ of a Magistrate, and includes a Magistrate
"Magistrate. f -r^ ,• ^ . ., ,
of Police * ^ * * :
-, , words in the singular include the pluraL
Number. . ° r 1
and vice versa :
„ , words denoting the masculine gender
include females :
D, LS 16
242 THE LAW OF SEDITION.
And in every part of British India to which this Act shall
extend, ' ' Local Government ' ' shall mean
*' Local Governmeat. ,i • i i i -, ■ •
the person authorised by law to administer
executive government in such part, and includes a Chief Com-
missioner.
2, [Repeal of Act XI of 1835]. Rep. Act XIV of 1870.
PART II.
OF PRINTING-PRESSES AND NEWSPAPERS.
3. Every book or paper printed within British India shall
^ ^. , , , have printed leeibly on it the name of the
Particulars to be . -^ n j
printed on books and printer and the place of printing, and (if
^'^^^'^*" the book or paper be published) [the name]
of the publisher and the place of publication.
4. No person shall, within British India, keep in his pos-
^ ^ • i- session any press for the printing of books
Keeper of printing- -^ '- x o
press to make deciar- or papers, who shall not have made and sub-
^ ^°°' scribed the following declaration before the
Magistrate within whose local jurisdiction such press may be :
■'1, A. B,, declare that I have a press for printing at ."
And this last blank shall be filled up with a true and precise
description of the place where such press may be situate.
5. No printed periodical work, containing public
news or comments on public news, shall
tio^"orprhited'"plr'io' be published in British India, except in
dicais containing pub- conformity with the rules hereinafter laid
lie news. •'
down :
(1) The printer and the publisher of every such periodical
work shall appear before the Magistrate within whose local ju-
risdiction such work shall be published, and shall make and
subscribe, in duplicate, the following declaration :
■'I, A. B., declare that I am the printer [or publisher, or
printer and publisher] of the periodical work entitled and
printed [or published, or printed and published, as the case may
he] at- ."
APPENDIX. 243
And the last blank in this form of declaration shall be filled
up with a true and precise account of the premises where the
printing or publication is conducted :
(2) As often as the place of printing or publication is
changed, a new declaration shall be necessary :
(3) As often as the printer or the publisher who shall
have made such declaration as is aforesaid shall leave British
India, a new declaration from a printer or publisher resident
within the said territories shall be necessary.
6. Each of the two originals of every declaration so made
and subscribed as is aforesaid, shall be au-
^'"'^'"'SrltoV^ '''' thenticated by the signature and official seal
of the Magistrate before whom the said
declaration shall hsive been made.
One of the said originals shall be deposited among the re-
cords of the office of the Magistrate, and the
Deposit. T n 1 T ■ ^
other shall be deposited among the records
of the High Court of Judicature, or [other principal Civil Court
of original jurisdiction for the place where] the said declaration
shall have been made.
The officer in charge of each original shall allow any person
to inspect that original on payment of a
Inspection and supply t r i i ii ■ j_
of copies. *^^ of one rupee, and shall give to any
person applying, st copy of the said declara-
tion, attested by the seal of the Court which has the custody
of the original, on payment of a fee of two rupees.
7. In any legal proceeding whatever, as well civil as
r^fc f ■, criminal, the production of a copy of such
Omce copy or de- •'- _ _ ^ •-
ciaration to be primA declaration as is aforesaid, attested by the
seal of some" Court empowered by this Act
to have the custody of such declarations, shall be held (unless
the contrary be proved) to be sufficient evidence, as against
the person whose name shall be subscribed to such declaration,
that the said person was printer or publisher, or printer and
publisher (according as the words of the said declaration may
be) of every portion of every periodical work whereof the title
shall correspond with the title of the periodical work mentioned
in the declaration.
244 THE LAW 01' SEDITION.
8. Provided always that any person who may have sub-
scribed any such declaration as is aforesaid.
New declaration "Y , , ,
persons who have and who may subsequently cease to be the
X:q^!?;:S:ed"o pointer or publisher of the periodical work
he j.rinters or pub- mentioned in such declaration, may appear
before any Magistrate, and make and sub-
scribe in duplicate the following declaration : —
"I, A. B., declare that I have ceased to be the printer
[or publisher, or printer and publishei] of the periodical work
entitled .' '
Each original of the latter declaration shall be authenti-
cated by signature and seal of the Magistrate
'^"'''""iHng'r ''"'^ before whom the said latter declaration
shall have been made, and ont; original of
the said latter declaration shall be filed along with each original
of the former declaration.
The officer in charge of each original of the latter declaration
shall allow any person applying to inspect
Inspection and supply ^^^^^^ original on pavment of a fee of one
of copies. o 1 ~
rupee, and shall give to any person apply-
in<y, a copy of the said latter declaration, attested by the seal.
of the Court having custody of the original, on payment of a
fee of two rupees.
In all trials in which a copy, attested as is aforesaid, of
the former declaration shall have been put
Putting copy in ^^ evidence, it shall be lawful to put in
evidence. . .
evidence a copy, attested as is aforesaid,
of the latter declaration, and the former declaration shall nob
be taken to be evidence that the declarant was, at any period
subsequent to the date of the latter declaration, printer or
publisher of the periodical Avork therein mentioned.
TART III.
DELIVERY OF BOOKS.
9. Printed or lithographed copies of the whole of every
Copies of books book which shall be printed or lithographed
STen'fmenfoTAcTTo in British India after this Act shall come
he delivered gratis to -^^^^ ^^^^^ together with all maps, prints or
Government. °
APPENDIX.
245
other engravings belonging tliereto, finished and coloured in the
same manner as the best copies of the same, shall, notwith-
standing any agreement (if the book be published) between
the printer and publisher thereof, be delivered by the printer
at such place and to such officer as the Local Government
shall, by notification in the official Gazette, from time to time
direct, and free of expense to the Government; as follows,
that is to say : —
{(i) in any case, within one calendar month after the day
on which any such book shall first be delivered out
of the press, one such copy, and,
{h) if within one calendar year from such day the Local
Government shall require the printer to deliver other
such copies not exceeding two in number, then within
one calendar month after the day on which any
such requisition shall be made by the Local Govern-
ment on the printer, another such copy, or two other
such copies, as the Local Government may direct,
the copies so delivered being bound, sewed or stitched
together and upon the best paper on which any copies of the
book shall be printed or lithographed.
The publisher or other parson employing the printer shall,
at a reasonable time before the expiration of the said month,
supply him with all maps, prints and engravings finished and
coloured as aforesaid, which may b3 necessary to enable him
to comply with the requirements aforesaid.
Nothing in the former part of this section shall apply to —
t(r) any second or subsequent edition of a book in which
edition no additions or alterations either in the
letter-press or in the maps, book prints or other
engravings belonging to the book have been made,
and a copy of the first or some preceding edition of
which book has been delivered under "this Act, or
(ii) any periodical work published in conformity with the
rules laid down in section 5 of this Act.
10. The officer to whom a copy of a book is deli-
. ^ ^ . vered under the last foregoing section shall
Uoeeipt for copies _ _ , . .
vlelivercd under sec- give to the printer a receipt in Avriting
tion 9. ,1 (.
theretor.
240 THE LAW OF SEDITIOX.
11. The copy delivered pursuant to clause (a) of the first
Tx- , . . paragraph of section 9 of this Act shall be
Disposal or copies -^ _ or
delivered under sec- disposed of as the Local Government shall
tion 9. J- J • , • T • .
irom time co time determine. Any copy or
copies delivered pursuant to clause (6) of the said paragraph
shall be transmitted to the British Museum or the Secretary
of State for- India, or to the British Museum and the said
Secretary of State, as the case may be.
PART IV.
PENALTIES,
12. Whoever shall print or publish any book or paper
Penalty for printing otherwise than in Conformity with the rule
contrary to rule in contained in Section 3 of this Act shall, on
flection 3. . . , . ht ■ i ■ ^ -i
conviction bciore a Magistrate, be punished
by fine not exceeding five thousand rupees, or by simple impri-
sonment for a term not exceeding two years, or by both.
13. Whoever shall keep in his possession any such press
as aforesaid, without making such a de-
Penalty for keeping , .. ■ • i i i.- a s: ^.i.-
press without making claration as IS required by section i ol this
declaration required ^^t, shall, on couviction before a Maeis-
b}' section 4. .
trate, be punished by fine not exceeding
five thousand rupees, or by simple imprisonment for a term
not exceeding two years, or by both.
14. Any person who shall, in making any declaration
under the authority of this Act, make a
inSwrstatrni"nt" statement which is false, and which he
either knows or believes to be false or does
not believe to be true, shall on conviction before a Magistrate,
be punished by fine not exceeding five thousand rupees, and
imprisonment for a term not exceeding two years.
15. Whoever shall print or publish any such periodical
work as is hereinbefore described without
or^'^ibHs^S^peS Conforming to the rules hereinbefore laid
cais without conform- down, or whoever shall print or publish, or
ing orues. ^^^^^^ ^^^^^^ ^^ ^^ printed or published, any
APPENDIX. 247
such periodical work, knowing that the said rules have not been
obssrved with respect to that \vork, shall, on conviction before
a Magistrate, be punished with fine not exceeding five thousand
rupees, or imprisonment for a term not exceeding two years,;
or both.
16. If any printer of any such book as is referred to in
section 9 of this Act shall neglect to deliver
Penalty for not dell- • <• i i ,
vering Looks or not copies 01 the Same pursuant to that section^
s..pplying printer with ^^ ^^^^^ f ^j. ^ ^^^^ ^^f^^j^ .j^j.^^-^ ^ . ^^
Government such sum not exceeding fifty
rupees as a Magistrate having jurisdiction in the place where
the book was printed may, on the application of the ofiicer to
whom the copies should have been delivered or of any person
authorised by that officer in this behalf, determine to be in the
circumstances a reasonable penalty for *the default, and, in ad-
dition to such sum, such further sum as the Magistrate may
determine to be the value of the copies which the printer ought
to have delivered.
If any publisher or other person employing any such printer
shall neglect to supply him, in the manner prescribed in the
second paragraph of section 9 of this Act, with the maps, prints
or engravings which may be necessary to enable him to comply
with the provisions of that section, such publisher or other
person shall for every such default forfeit to the Government
such sum not exceeding fifty rupees as such a Magistrate as
aforesaid may, on such an application as aforesaid, determine
to be in the circumstances a reasonable penalty for the default,;
and, in addition to such sum, such further sum as the Magistrate
may determine to be the value of the maps, prints or engravings
w^hich such publisher or other person ought to have supplied.
17. Any sum forfeited to the Government under the last
foregoing section may be recovered, under
JTZI "dis^oSl t^« ''^''^''^ «f t^« Magistrate determining
thereof and of fines. the sum, or of his successor in office, in the
manner authorised by the Code of Criminal
Procedure for the time being in force, and within the period
prescribed by the Indian Penal Code, for the levy of a fine.
248 THE LAW OF SEDITION.
All fines or forfeitures under this Part of this Act shall,
wlien recovered, be disposed of as the Local Government shall
from time to time direct.
PART V.
REGISTRATION OF BOOKS.
18. There shall be kept at such office, and by such officer
as the Local Government shall appoint in
^randa 'of" books!""' '^^^^ behalf, a book to be called a Catalogue
of Books printed in British India, wherein
shall be registered a memorandum of every book which shall
have been delivered [pursuant to clause {a) of the first para-
graph of section 9] of this Act. Such memorandum shall (so
far as may be practicable) contain the following particulars
(that is to say) : — ■
(1) the title of the book and the contents of the title-page,
with a translation into English of such title and
contents, when the same are not in the English
language :
(2) the language in which the book is written :
(3) the name of the author, translator or editor of the
book or any part thereof :
(4) the subject :
(5) the place of printing and the place of publication :
' (6) the name or firm of the printer and the name or firm
of the publishei- :
(7) the date of issue from the press or of the publication :
(8) the number of sheets, leaves or pages :
(9) the size :
(10) the 'first, second or other number of the edition:
(11) the number of coi^ies of which the edition consists :
(12) whether the book is printed or lithographed :
(13) the price at which the book is sold to the public : and
(14) the name and residence of the proprietor of the copy-
right or of any portion of such copyright.
Such memorandum shall be made and registered in the case
of each book as soon as practicable after tht! delivery of the
[copy thereof pursuant to clause (a) of the first paragraph of
section 9].
APPENDIX. 249
Every registration under this section shall, upon payment
of the siun of two rupees to the officer
Effect of regis- , . ^. • i ^( , i , , ,
tration. Keeping the said Catalogue, be deemed to
be an entry in the Book of Eegistry kept
under Act No. XX of 1847 {for the encouragement of learninfj
in the territories subject to the Government of the East India
■Company, hy the defining and providing for the enforcement of the
right called copyright therein) ; and the provisions contained
in that Act as to the said Book of Regis-
Act XX of 1S47 , 1 11 , , ,- . J- X XI
fappliad. tiy shall apply, mutatis mutandis, to the
said Catalogue.
19. The memoranda registered during each quarter in the
said Catalogue shall be published in the
morindr'^dste'd: l^^^l ^^^^tJe as soon as may be after the
end of such quarter, and a copy of the
memoranda so published shall be sent tc the said Secretary
of State, and to the Secretary to the Government of India in
the Home Department, respectively.
PART YI.
MISCELLANEOUS.
20. The Local Government shall have power to make
such rules as may be necessary or desirable
°^rules.™^ ^^ ^0^' carrying out the objects of this Act,
and from time to time to repeal, alter and
«.dd to such rules.
All such rules, and all repeals and alterations thereof, and
„ ... ^. additions thereto, shall be published in the
Publication. ^
local Gazette.
21. The Governor-General of India in Council may, bv
Power to exclude any notification in the Gazette of India, exclude
class of books from any class of books from the operation of
operation of Act. -^
the whole or any part or parts of this Act.
22. [Continuance of parts of Act.] Eep. Act X of 1890, s. 7.
23. [Commencement ?i Rep. Act XIV of 1870.
DRAMATIC PERFORMANCES ACT.
ACT XIX OF 1878.
PASSED BY THE GOVERNOR-GENERAL OF INDIA IN COUNCIL.
{Received the assent of the Governor-General on the l^th
December 1876).
An Act for the better control of public dramatic
performances.
WHEREAS it is expedient to empower the Government to
prohibit public dramatic performances which
Preamble. "■ ^
are scandalous, defamatory, seditious or ob-
scene ; It is hereby enacted as follows : —
^,^ . , 1. This Act may be called "The
Short title, ■'
Dramatic Performances Act, 1876 :
It extends to the whole of British
Local extent.
India ;
And it shall come into force at
Cnmmencement.
once.
2. In this Act "Magistrate" means, in the Presidency
,.,, . , ^ „ , ,. , Towns a Magistrate of Police, and elsewhere
"Magistrate" defined. . "
the Magistrate of the District.
3. Whenever the Local Government is of opinion that
Power to prohibit any plav, pantomime, or other drama per-
certain dramatic per- formed or about to be performed in a public
formances.
place is —
(a) of a scandalous or defamatory nature, or
(h) likely to excite feelings of disaffection to the Govern-
ment established by law in British India, or
(c) likely to deprave and corrupt persons present at the
performance,
the Local Government, or outside the Presidency Town*
and Rangoon the Local Government or such Magistrate as it
may empov;er in this behalf, may by order prohibit the per-
formance.
APPENDIX. 251
Explanation. — Any building or enclosure to which the
public are admitted to witness a performance on payment of
money, shall be deemed a ' ' public place' ' within the meaning
of this section.
4. A copy of any such order may be served on any person
about to take part in the performance so
Power to serve order . . ^ ^ • r
of proLibition. j)rohibited or on the owner or occupier of
any house, room or place in which such
performance is intended to take place ; and any person on
whom such copy is served, and who does,
Penal ty^for^jiso ey- ^^_ willingly permits, any act in disobedience
to such order, shall be punished on convic-
tion before a Magistrate with imprisonment for a term which
may extend to three months, or with fine, or with both.
5. Any such order may be notified by proclamation, and
a written or printed notice thereof may be
Power to notify order. n , i r
stuck up at any place or places adapted lor
giving information of the order to the persons intending to take
part in or to witness the performance so prohibited.
Penalty for disobeying t)- Whoever, after the notification of
prohibition. j^jjy g^pl^ order—
(a) takes part in the performance prohibited thereby,
or in any performance substantially the same as the performance
so prohibited, or
(&) in any manner assists in conducting any such perform-
ance, or
(c) is in wilful disobedience to such order present as a
spectator during the whole or any part of any such performance,
or
{d) being the owner or occupier, or having the use of, any
house, room or place, opens, keeps or uses the same for any such
performance, or permits the same to be opened, kept or used for
any such jjerfoimance,
shall be punishable on conviction before a Magistrate with
imprisonment for a term which may extend to three months^
or with fine, or with both,
■252 THE LAW OF SEDITION.
7. For the purpose of ascertaining the character of any
intended public dramatic performance, the
Power to call for in- -,^ j Government or such officer as it may
lormation.
Specially empower in this behalf, may apply
to the author, proprietor or printer of the drama about to be
performed, or to the owner or occupier of the place in which it is
intended to be performed, for such information as the Local
Government or such officer thinks necessary.'
Every person so applied to shall be bound to furnish the
same to the best of his abilit}', and whoever contravenes this
section shall be deemed to have committed an offence under
section 176 of the Indian Penal Code.
8. If any Magistrate has reason to belicv-e that any house,
room or place is used, or is about to be used,
Power to grant war- f^j, g^j^y performance prohibited under this
rant to Police to enter *' -^ . -^ .
and arrest and seize. Act, he may, by his warrant, authorize any
officer of police to enter with such assistance
as may be requisite, by night or by day, and by force if neces-
sary, any such house, room or place, and to take into custody
all persons whom he finds therein, and to seize all scenery,
dresses and other articles found therein and reasonably suspected
to have been used, or to be intended to be used, for the purpose
of such performance.
Saving of prosecu- 9. No conviction under this Act shall
a:, Te'Zn/ml bar a prosecution under section 124A or
and 294. section 294 of the Indian Penal Code.
10. Whenever it appears to the Local Government that
the provisions of this section are required
drrZtTcpSfoJ'm'fnces in any local area, it may, with the sanction
in any local area ex- ^f the Govcmor-General in Council, declare,
cept under license. . . i n^ • i /-<
by notification in the local omcial Gazette,
that such provisions are applied to such area from a day to
be fixed in the notification.
On and after that day, the Local Government may order
that no dramatic performance shall take place in any place of
public entertainment within such area, except under a license
APPEND [X. 253'
to be granted by such Local Government, or such officer as it
may especially empower in this behalf.
The Local Government may also order that no dramatic
performance shall take place in any place of public entertain-
ment within such area, unless a copy of the piece, if and so far
as it is written, or some sufficient account of its purport, if and
so far as it is in pantomime, has been furnished, not less thaii
three days before the performance, to the Local Government^.
or to such officer as it may appoint in this behalf.
A copy of any order under this section may be served oa
any keeper of a place of public entertainment, and if thereafter
he does, or willingly permits, any act in disobedience to such
order, he shall be punishable on conviction before a Magistrate
with imprisonment for a term which may extend to three
months, or ^^ith fine, or with both.
11. The powers conferred by this Act on the Local Gov-
Powers exerciseiibie ernment mav be exercised also by the Gov-
by Governor-General. ^,^,^,.(.^^,^,^1 i^ Council.
Exclusion of perform- ^- Nothing in this Act applies to any
ancesat religious fes- jairas or performances of a like kind at
religious festivals.
SECURITY FOR GOOD BEHAVIOUR.
CRIMINAL PROCEDURE CODE, S. 108.
ACT V OF 1898.
" Whenever a Chief Presidency or District Magistrate, or
a Presidency Magistrate or a Magistrate of
ha^vlour^Vom ^pei'ns the first class Specially empoAvered by thd
disseminating sedi- Lfj^al Government in this behalf, has infor-
tious matter. . . . .
mation that there is witnm the limits ot his
jurisdiction any person who, within or without such limits,
either orally or in writing, disseminates or attempts to dissemin-
ate, or in any wise abets the dissemination of, —
(a) any seditious matter, that is to say, any matter the
publication of which is punishable under section
124A of the Indian Penal Code, or
(h) any matter the publication of which is punishable
under section 153A of the Indian Penal Code, or
(c) any matter concerning a Judge which amounts to cri-
minal intimidation or defamation under the Indian
Penal Code^
such Magistrate may (in manner hereinafter provided)
require such person to show cause why he should not be ordered
to execute a bond, with or without sureties, for his good beha-
viour for such period, not exceeding one year, as the Magistrate
thinks fit to fix.
No proceedings shall be taken under this section against the
editor, proprietor, printer or publisher of any publication regis-
tered under, or printed, or published in coaformity with the
riiles laid down in the Press and Registration of Books Act,
1867, except by the order or under the authority of the Gov-
ernor-General in Council, or the Local Government, or some
officer empowered by the Governor-General in Council in this
behalf."
PREVENTION OF SEDITIOUS MEETINGS ACT.
ACT VI OF 1907.
PASSED BY THE GOVERKOR-GENEEAL OF IXDIA IN COUNCIL.
{Received the assent of the Governor-General on the \st November
1907).
An Act to make better provision for the prevention of public
meetings likely to promote sedition or to cause a disturbance
of public tranquillity.
WHEREAS it is expedient to make better provision for tke
prevention of public meetings likely to promote sedition or to
cause a disturbance cf public tranquillity ; It is Lereb}^ enacted
us follows : —
Short title and es- 1- (^) ^his Act may be called tke Pre-
sent, vention of Seditious Meetings Act, 1907.
( v) It extends to the whole of British India, but shall have
operation only in such Provinces as the Governor-General in
Council may from time to time notif}'' in the Gazette of India.
2. (i) The Local Government may, by, notification in the
Power of Local Gov- ^<^cal official Gazette, declare the whole or
ernmcnt to notify pro- any part of a Province, in which this Act is
claimed areas. t i •
for the time being in operation, to be a
proclaimed area.
{2) A notification made under sub-section {!) shall not re-
main in force for more than six months, but nothing in this sub-
section shall be deemed to prevent the Local Government from
making any further notifications in respect of the same area
from time to time as it may think fit.
3. (?) In this Act, the expression "public meeting"
Definition meaus a meeting which is open to the pub-
lic or any class or portion of the public.
{2) A meeting may be a public meeting notwithstanding
that it is held in a private place and notwithstanding that ad-
mission thereto may have been restricted by ticket or otherwise.
256 THE LAW OF SEUITION.
{o) A meeting of more than twenty persons shall be pre-
sumed to be a public meeting within the meaning of this Act un-
til the contrary is proved.
4. {1) No public meeting for the furtherance or discus-
sion of any subject likely to cause distur-
of'publie'meetuigs" bance or public excitement or of any politi-
cal subject or for the exhibition or distribu-
tion of any writing or printed matter relating to any such
subject shall be held in any proclaimed area —
(a) unless written notice of the intention to hold such
meeting and of the time and place of such meeting
has been given to the District Superintendent of
Police or the Commissioner of Police, as the case
may be, at least three days previously ; or
(h) unless permission to hold such mfceting has been ob-
tained in writing from the District Superintendent
of Police or the Commissioner of Police, as the case
may be.
( .') Any officer of Police, net below the rank of an Ins-
pector, may, by order in writing, depute one
^"Tke^report.' ^^ ^r more Police-officers or other persons to
attend any such meeting for the purpose cf
causing a report to be taken of the proceedings.
(o) Nothing in this section shall apply to any public meet-
ing held under any statutory or other express
Exception. , , i • i ,• •
legal authority or to public meetings conven-
ed by a Sheriff or to any public meetings or class of public meet-
ings exempted for that purpose by the Local Government by
general or special order.
5. The District Magistrate or the Commissioner of Police,'
as the case may be, may at any time by
"^X^^' order in writing, of which public notice
shall forthwith be given, prohibit any public
meeting in a proclaimed area if, in his opinion, such meeting
is likely to promote sedition or disaffection or to cause a
disturbance of the public tranquillity.
6. (/) Any person concerned in the promotion or con-
p^^ ,,. duct of a public meeting held in a pro-
claimed area contrary to the provisions of
APPENDIX. 257
section 4 shall be punished with imprisonment for a term
which may extend to six months, or with iine or with both.
{2} Any public meeting which has been prohibited under
section 5 shall be deemed to be an unlawful assembly within
the meaning of Chapter VIII of the Indian Penal Code and of
Chapter IX of tha Code of Criminal Procedure, 1898.
7. Whoever, in a proclaimed area, in a public place or a
Penalty for delivery P^^^^ ^^ public resort, otherwise than at a
of speeches in public public meeting held in accordance with, or
^ ^ ' exempted from, the provisions of section i^
without the permission in writing of the Magistrate of the
District or of the Commissioner of Police, as the case may be,
previously obtained, delivers any lecture, address or speech on
any subject likely to cause disturbance or public excitement or
on any political subject, to persons then present, may be
arrested without warrant and shall be punished with imprison-
ment for a term which may extend to six months, or with line,
or with both.
^ , 8. (^) The Eegulation of Meetings
Ordinance, 1907, is hereby superseded.
(-) Nothing contained in this Act shall afiect —
the previous operation of the said Ordinance or anything
duly done or sufiered thereunder ; or
any obligation or liability incurred under the said Ordi-
nance; or
any punishment incurred in respect of any oiience commit-
ted against the said Ordinance ; or
any investigation or legal proceeding in respect of any such
obligation, liability or punishment as aforesaid ;
and any such investigation or legal proceeding may be institut-
ed or continued and any such punishment may be imposed as if
the said Ordinance had not been superseded or had not expired.
9. This Act shall continue in force until the expiration
of three years next after the passing
Duration of Act. -^ f &
thereof.
D, LS 17
NEWSPAPERS (INCITEMENTS TO OFFENCES) ACT.
ACT VII OF 1908.
PASSED BY THE GOVERNOR-GENERAL OF INDIA IN COUNCIL.
{Received the assent of the Governor-General on the Sth June, 1908.)
An Act for the prevention of incitements to murder and
to otter offences in newspapers.
WHEREAS it is 'expedient to make better provision for the
prevention of incitements to murder and to other offences in
newspapers ; It is hereby enacted as follows : —
, , , 1. U) This Act may be called the
Short title and extent. ,-r ■ ^^
JNewspapers (Incitements to Offences) Act,
1908.
(3) It extends to the whole of British India.
2. (i) In this Act, unless there is
Definitions. , . ' . '
anything repugnant m the subject or
context, —
(a) ' ' Magistrate ' ' means a District Magistrate or Chief
Presidency Magistrate :
(6) "newspaper" means any periodical work containing
public news or comments on public news :
(c) "printing-press" includes all engines, machinery,
types, lithographic stones, implements, utensils and
other plant or materials used for the purpose of
printing.
(2) Save as herein otherwise provided all words and ex-
pressions in this Act shall have the same meanings as those res-
pectively assigned to them in the Code of Criminal Procedure,
1898.
3. (/) In cases where, upon application made by order
Power to forfeit oi or under authority from the Local
printing presses in Government, a Magistrate is of opinion that
a newspaper printed and published within
APPENDIX. 259
the Province contains &n.j incitement to murder or to any
ofience under the Explosive Substances Act, 1908, or to any
act of violence, such Magistrate may make a conditional order
declaring the printing press "used, or intended to be used, for
th.e purpose of printing or publishing such newspaper, or found
in or upon the premises where such newspaper is, or at the
time of the printing of the matter complained of was, printed
and all copies of such newspaper, wherever found, to be for-
feited to His Majesty, and shall in such order state the material
facts and call on all persons concerned to appear before him,
at a time and place to be fixed by the order, to show cause why
the order should not be made absolute.
(~) A copy of sach order shall be fixed on some conspicuous
patt of the premises specified in the declaration made in respect
of such newspaper under section 5 of the Press and Eegistration
of Books Act, 1867, or of any other premises in which such news-
paper is printed, and the affixing of such copy shall be deemed
to be due service of the said order on all persons concerned.
(J) In cases of emergency or in cases where the purposes
of the application might be defeated by delay the Magistrate
may, on or after the making of a conditional order under sub-
section (i), make a further order ex parte for the attachment of
the printing press or other property referred to in the conditional
order.
(4) If any person concerned appears and shows cause
against the conditional order, the Magistrate shall take evidence,
whether in support of or in opposition to such order, in manner
provided in section 356 of the Code of Criminal Procedure, 1898.
(5) If the Magistrate is satisfied that the newspaper con-
tains matter of the nature specified in sub-section {!), he shall
make the conditional order of forfeiture absolute in respect of
such property as he may find to be within the terms of the said
sub-section.
(6') If the Magistrate is not so satisfied, he shall set aside
the conditional order of forfeiture and the order of attachment,
if any.
260 THE LAW OF SEDITION.
4. (i) The Magistrate may by Avarraut empower any
Police-officer not below the rank of a Sub-
Power to seize. . i i , •
Inspector to seize and detain any property
ordered to be attached under section 3, sub-section {o), or to
seize and carry away any property ordered to be forfeited
under section 3, sub-section {o), wherever found and to enter
upon and search for such property in any premises —
(a) where the newspaper specified in such warrant is
printed or published, or
(6) where any such property may be or may be reason-
ably suspected to be, or
(c) where any copy of such newspaper is kept for sale,
distribution, publication or public exhibition or
reasonably suspected to be so kept.
(2) Every warrant issued under sub-section (i) so far as>
it relates to a search shall be executed in manner provided for
the execution of search-wairants by the Code of Criminal Pro-
cedure, 1898.
5. Any person concerned Avho has appeared and shown
cause against a conditional order of forfei-
Appeal. 1 r^ ■ I •
tuie may appeal to the High Court within
fifteen days from the date when such order is made absolute.
6. Save as provided in section 5, no order duly made by a
Bar of other pro- Magistrate under section 3 shall be called
ceediDgs. ^^ question in any Court.
7. Where an order of forfeiture has been made absolute
in relation to any newspaper the Local Gov-
Power to annul de- , , •■!•,•• i.i- i i
ciaration under Press ernment may, by notification in the local
and Registration of official Gazette, annul any declaration made
Books Act, 186 K •'
by the printer or publisher of such news-
paper under the Press and Kegistration of Books Act, 1867,
and may by such notification prohibit any further declaration
being made or subscribed under the said Act in respect of
the said newspaper, or of any newspaper which is the same
in substance as the said newspaper, until such prohibition be
withdrawn.
APPENDIX. 261
8. Any person who prints or publishes any newspaper
specified in any prohibition notified under
section 7 during the continuance of that
prohibition shall be liable, on conviction, to the penalties
prescribed by section 15 of the Press and Eegistration of
Books Act, 1867.
9. All proceedings under this Act shall be conducted so
far as may be in accordance with the pro-
Application of Code . . J, , ^ -, t rt ■ ■ 1 T\ ^
ofCriminal Procedure. Visions 01 the Code oi Criminal rrocedure,
1898.
10. No proceedings taken under this Act shall operate to
Operation of other prevent any person from being prosecuted
laws not barred. f^^ ^^^ ^^^ ^^^^^^ constitutes an offence
under anv other law.
THE INDIAN PRESS ACT.
ACT I OF 1910.
PASSED BY THE GOVERNOR-GENERAL OF INDIA IN COUNCIL.
{Received the assent of the Govertior-General on the 9th February.
1910.)
An Act to provide for the better control of the Press.
AVHEREAS it is necessary to provide for the be tte r control
o f the Pr ess ; It is hereby enacted as follows : —
Short title and 1- (^) This Act may be called the-
extent. lndia.n Press Act, 1910.
('^) It extends to the whole of British India, inclusive of
British Baluchistan, the Santhal Parganas and the Pargana of
Spiti.
2. In this Act, unless there is anything
Definitions. J &
repugnant m the subject or context, —
{a) "book" includes every volume, part or division of a
volume, and pamphlet, in any language, and every
sheet of music, map, chart or plan separately printed
or lithographed :
(6) "document" includes also any painting, drawing oir
photograph or other visible representation :
(c) "High Court" means the highest Civil Court of Appeal
for any local area except in the case of the Provinces
of Ajmei-Merwara and Coorg where it means the
High Court of Judicature for the North- Western
Provinces and the High Court of Judicature at
Madras respectively :
(d) "Magistrate" means a District Magistrate or Chief
Presidency Magistrate :
(c) "newspaper" means any periodical work containing
public news or comments on public news: and
(/) "printing-press" includes all engines, machinery,
types, lithographic stones, implements, utensils and
APPENDIX. 263
other plant or materials used for the purpose of
printing.
3. (1) Every person keeping a printing-press who is
required to make a declaration under section
Deposit of security 4 ^f ^Ije Press and Eegistration of Books Act,
by keepers of printing- .
presses, 1867, shall, at the tmie of making the same,
deposit with the Magistrate before whom the
declaration is made security to such an amount, not being
less than five hundred or more than two thousand rupees, as
the Magistrate may in each case think fit to require, in money
or the equivalent thereof in securities of the Government
of India :
Provided that the Magistrate may, if he thinks fit, for
special reasons to be recorded by him, dispense with the deposit
of any security or may from time to time cancel or vary any
order under this sub-section.
(;i?) ^\^l.euever it appears to the Local Government that
any printing-press kept in any place in the territories under its
administration, in respect of which a declaration was made
prior to the commencement of this Act under section 4 of the
Press and Registration of Books Act, 1867, is used for any
of the purposes described in section 4, sub-section {!), the
Local Government may, by notice in writing, require the
keeper of such press to deposit with the Magistrate within
whose jurisdiction the press is situated security to such au
amount, not being less than five hundred or more than five
thousand rupees, as the Local Government may think fit
to require, in money or the equivalent thereof in securities of the
Government of India.
4. (-?) Whenever it appears to the Local Government that
any printing-press in respect of which any security has been
deposited as required by section 3 is used for
seS/ for°feit^eT^''in ^^^^ Purpose of printing Or publishing any
certain cases. newspaper, book or other document contain-
ing any words, signs or visible representations
which are likely or may have a tendency, directly or indirectly^
whether by inference, suggestion, allusion, metaphor, implication
or otherwise —
264 ' THE LAW OF SEDITION.
(a) to incite to murder or to any offence under the Explo-
sive Substances Act, 1908, or to any act of violence,
or
(6) to seduce any officer, soldier or sailor in the Army or
Navy of His Majesty from his allegiance or his duty,
or
(c) to bring into hatred or contempt His Majesty or the
Government established by law in British India
or the administration of justice in British India or
any Native Prince or Chief under the suzerainty of
His Majesty, or any cl ass or sect i on of_ ^5is
Majesty^.Si, .subjeG 3bs--JiLjBritis h Ind ia, or, to excite
disaffection towards His Majesty or t he said Govern-
ment or any such Prince or Chief, or .
(d) to put any person in fear or to cause annoyance to him
and thereby induce him to deliver to any person any
property or valuable security, or to do any act which
he is not legally bound to do, or to omit to do any act,
which he is legally entitled to do, or
(e) to encourage or incite any person to interfere with the
administration of the law or with the maintenance
of law and order, or
(/) to convey any threat of injury to a public servant,
or to any person in whom that public servant is
believed to be interested, with a view to inducing
that public servant to do any act or to forbear or
delay to do any act connected with the exercise of
his public functions,
the Local Government may, by notice in writing to the keeper
of such printing-press, stating or describing the words, signs
or visible representations which in its opinion are of the nature
described above, declare the security deposited in respect of
such press and all copies of such newspaper, book or other docu-
ment wherever found to be forfeited to His Majesty.
Ex2)lanation I. — In clause (c) the expression "disaffection"
includes disloyalty and all feelings of enmity.
Explanation II. — Comments expressing disapproval of the
measures of the Government or of any such Native Prince or
Chief as aforesaid with a view to obtain their alteration bv
APPENDIX.
265
lawful means, or of the administrative or other action of the
Government or of any such Native Prince or Chief or of the
administration of justice in British India witliaut- o xciting -or ^
attempting ta_.exdte^«te^ disafiection do not>^^
come within the scope of clause (c).
(5) After the expiry of ten days from the date of the issue
of a notice under sub-section {!), the declaration made in respect
of such press under section 4 of the Press and Registration of
Books Act, 1867, shall be deemed to be annulled.
5. A^Tiere the security given in respect of any press has
been declared forfeited under section 4, every
^^^securiy!""*''^' person making a fresh declaration in respect
of such press under section 4 of the Press and
Registration of Books Act, 1867, shall deposit with the Magis-
trate before whom such declaration is made security to such
amount, not being less than one thousand or more than ten
thousand rupees, as the Magistrate may think fit to require,
in money or the equivalent thereof in securities of the Govern-
ment of India.
6. If after such further security has been deposited the
, , printine-press is again used for the purpose
Power to declare ^ '^ ^ • t •
further security, print- of printing or publishmg any newspaper,
£s fm^eited.''''^'''^ ^ook or other document containing any
words, signs or visible representations which
in the opinion of the Local Government are of the nature
described in section 4, sub-section (?), the Local Government
)uay, by notice in writing to the keeper of such printing-press,
stating or describing such words, signs or visible representations,
declare —
(a) the further security so deposited,
(6) the printing-press used for the purpose of printing or
]3ublishing such newspaper, book or other document,
or found in or upon the premises where such news-
paper, book or other document is, or at the time of
printing the matter complained of was, printed, and
(c) all copies of such newspaper, book or other document
wherever found,
to be forfeited to His Majesty.
26('> THE LAW OP SEUmON.
7. {J) Where any printing-press is or any copies of any
newspaper, book or other document are de-
^'■'"wafranr''^" ^'^^^^ forfeited to His Majesty under this
Act, the Local Government may direct any
Magistrate to issue a warrant empowering any police-ofl&cer, not
below the rank of Sub-Inspector, to seize and detain any pro-
perty ordered to be forfeited and to enter upon and search for
such property in any premises —
(i) where any such property may be or may be reasonably
suspected to be, or
(ii) \vhere any copy of such newspaper, book or other docu-
ment is kept for sale, distribution, publication or pub-
lic exhibition or reasonably suspected to be so kept.
('?) Every warrant issued under this section shall, so far
as relates to a search, be executed in manner provided for the
execution of search-waiTants under the Code of Criminal Proce-
dure, 1898.
8, (J) Every publisher of a newspaper who is required
to make a declaration under section 5 of the
pubfi^w oVn'^wSX Press and Eegistration of Books Act, 1867,
shall, at the time of making the same,
deposit with the Magistrate before whom the declaration is
made security to such an amount not being less than five hundred
or more than two thousand rupees, as the Magistrate may in
each case think fit to require, in money or the equivalent
thereof in securities of the Government of India :
Provided that if the person registered under the said Act
&o printer of the newspaper is also registered as the keeper of
the press where the newspaper is printed, the publisher shall
not be required to deposit security so long as such registration
is in force :
Provided further that the Magistrate may, if he thinks fit,'
for special reasons, to be recorded by him, dispense with the
deposit of any security or may from time to time cancel or vary
any order under this sub-section.
(;?) Whenever it appears to the Local Government that
a newspaper published within its territories, in respect of which
a declaration was made by the publisher thereof prior to the
commencement of this Act, under section 5 of the Press and
APPENDIX.
26T
Registration of Books Act, 1867, contains any words, signs or
visible reiJiesentations of the nature described in section 4, sub-
section (i), the Local Government may, by notice in writings
require the publisher to deposit with the Magistrate within whose
jurisdiction the newspaper is published security to such an
amount, not being less than five hundred or more than five
thousand rupees, as the Local Government may think fit to re-
quire, in money or the equivalent thereof in securities of the
Government of India.
9. (/) If any newspaper in respect of which any security
has been deposited as required by section &
Power to declare contains anv words, signs or visible represen-
security lorfeitea in _ ". . . .
cortaiu"cases. tations which in the opinion of the Local
Government are of the nature described in
section 4, sub-section (i),the Local Government may, by notice
in writing to the publisher of such newspaper, stating or des-
cribing such Avords, signs or visible representations, declare
such security and all copies of such newspaper, wherever
found, to be forfeited to His Majesty.
(-) After the expiry of ten days from the date of the issue
of a notice under sub-section (1), the declaration made by the
publisher of such newspaper under section 5 of the Press and
Registration of Books Act, 1867, shall be deemed to be annulled.
10. "Where the security given in respect of any newspaper
is declared forfeited, any person making a
^^°seciirity."'^ °' ^'>^-^^'^ declaration under section 5 of the Press
and Registration of Books Act, 1867, as
publisher of such newspaper, or any other newspaper which is
the same in substance as the said newspaper, shall deposit with
the Magistrate before whom the declaration is made security
to such amount, not being less than one thousand or more
than ten thousand rupees, as the Magistrate may think fit to
require, in money or the equivalent thereof in securities of
the Government of India.
11. If after such further security has been deposited the
newspaper again contains any words, signs
Power to declare qj. visible representations which in the opi-
further security and ■ e ^ r^ j- i
newspapers forfeited, nion of the Local Government are of the
nature described in section 4, sub-section (-?)j
268 THE LAW OF SEDITION.
the Local Government may, by notice in writing to the publish-
er of such newspaper, stating or describing such words, signs or
visible representations, declare —
(a) the further -security so deposited, and
(6) all copies of such newspaper wherever found,
to be forfeited to His Majesty.
12. {J) WhQXQ any newspaper, book or other document
wherever printed appears to the Local Gov-
tain"p.^licatTonr?:r: ernment to contain any words, signs or
felted and to issne visible representations of the nature des-
snme. ' cxibed in section 4, sub-sectiou (^), the Local
Government may, by notification in the
local official Gazette, stating the grounds of its opinion, declare
such newspaper, book or other document to be forfeited to His
Majesty, and thereupon any police-officer may seize the same
wherever found, and any Magistrate may by warrant authorize
any police-officer not below the rank of Sub-Inspector to enter
upon and search for the same in any premises where the
newspaper, book or other document may be or may be reason-
ably suspected to be.
('') Every warrant issued under this section shall, so far
as relates to a search, be executed in manner provided for the
execution of search-warrants under the Code of Criminal Proce-
dure, 1898.
13. The Chief Customs-officer or other officer authorized
by the Local Government in this behalf may
Power to detain (jetain any package brought, whether by
packages containins.' •' ^ . . . .
certain publications land or sea, into British India which he sus-
when imported into , , , • i i.„ ^„
British India. pects to contain any newspapers, books or
other documents of the nature described in
section 4, sub-section (/), and shall forthwith forward copies
of any newspapers, books or other documents found therein
to such officer as the Local Government may appoint in this
behalf to be disposed of ia such manner as the Local Govera-
ment may direct.
14. No newspaper printed and published in British India
shall be transmitted by post unless the
nnSf 'by" ^o^'^of P^'^^ter and publisher have made a declara-
certain newspapers. tion under section 5 of the Press and
APPEiNDlX. 269
Registration of Books Act, 1867, and the publisher has depos-
ited security when so required under this Act.
15. Any officer in charge of a post-office or authorised
by the Post-Master General in this behalf
Power to detain arti- u^^y detain any article other than a letter
cles being transmittea
by post, or parcel in course of transmission by postj
which he suspects to contain—
(«) any newspaper, book or other document containing
words, signs or visible representations of the nature
described in section 4, sub-section (1), or
(6) any newspaper in respect of which the declaration
required by section 5 of the Press and Eegistration
of Books Act, 1867, has not been made, or the secu-
rity required by this Act has not been deposited
by the publisher thereof,
and shall deliver all such articles to such officer as the Local
Government may appoint in this behalf to be disposed of in such
manner as the Local Government may direct.
16. (?) The printer of every newspaper in British India
shall deliver at such place and to such officer
(Jopies of newspapers . i t i n , i • ^
printed in iJritish 'AS the Local bovernment may, by notmca-
gSil S t^:::t. ^^^^ ^^ t^« ^^c^^ ^^^^^^ Gazette, direct, and
free of expense to the Government, two
copies of each issue of such newspaper as soon as it is published.
{i^) If any printer of any such newspaper neglects to deli-
ver copies of the same in compliance with sub-section {1), he
shall, on the complaint of the officer to whom the copies should
have been delivered or of any person authorised by that officer
in this behalf, be punishable on conviction by a Magistrate hav-
ing jurisdiction in the place where the newspaper was printed
with fine which may extend to fifty rupees for every default.
IT. Any person having an interest in any property in
respect of which an order of forfeiture has
Application to High been made under section 4, 6, 9, 11 or 12
Court to set aside
order of forfeiture, may, within two months from the date of
such order,, apply to the High Court to sat
as ide s uch_ order on f,li£. .-gjuiund tha.t the newspaper, boak~oi
other document in respect of which the order was made did not
270 THE LAW OF SEDITION.
contain any words, signs or visible iepiesentatioi:s of the
nature described in section 4, sub-section (^).
18. Every sach application shall be heard and determined
by a Special Bench of the High Court com-
^^^"Bln^ch.^^'"''^ posed of three Judges, or, where the High
Court consists of less than three Judges, of
all the JudgCb.
19. (i) If it appears to the Special Bench that the words,
signs or visible representations contained
Order of Special in the newspaper, book or other document
Bench setting aside . j. j- i • i j.i j • 4.-
forfeiture. lEL respect 01 ^Yhlch the order in question
was made were not of the nature described
in section 4, sub-section {!), the Special Bench shall set aside
the order of forfeiture.
(^) Where there is a difference of opinion among the
Judges forming the Special Bench, the decision shall be in
accordance with the opinion of the majority (if an\) of those
Judges.
(-5) Where there is no such majority which concurs in
setting aside the order in ((uestion, such order shall stand.
20. On the hearing of any such application with reference
to any newspaper, any copy of such news-
nafJre "TendLrof ^^^P^!' V^^^^^^^d ^i|r_th^_comi2ieB£e^
newspapers, of this Act may be given in eviHericp. in aid
of the proof of th,^ ri?^tjire or ten^eftcy^ f
the words, signs or visible representations contained in such
newspaper which are alleged to be of the nature described in
section 4, sub-section (i).
21. Every High Court shall, as soon as conveniently may
be, frame rules to regulate the procedure
^°^^ cwt? '^ ^^ ^^^ ^^^® ^^ ^^^^ applications, the amount
of the costs thereof and the execution of
orders passed thereon, and until such rules are framed the prac-
tice of such Court in proceedings other than suits and appeais
shall apply, so far as may be practicable, to such applications.
22. Every declaration of forfeiture purporting to be made
,.,... , , under this Act shall, as against all persons,
JunsdictioD barred. . " <• r •
be conclusive evidence that the forfeiture
APPENDIX. 271
therein referred to has taken place, and no proceeding pur-
porting to be taken under this Act shall be called in question
by any Court, except the High Court on such application as
aforesaid, and no civil or criminal proceeding except as
provided by this Act, shall be instituted against any person
for anything done or in good faith intended to be done under
this Act. >•
23. (!) Whoever keeps in his possession a press for the
printing of books or papers without malting
PenaUy for keening j •- j j.- o 4.- r -l
press or publishing a deposit Under section 6 or section 5, when
newspaper without rgfrnired SO to do. shall on conviction by a
making deposit. ^ _ -^
Magistrate be liable to the penalty to which
he would be liable if he had failed to make the declaration
prescribed by section 4 of the Press and Registration of Books
Act, 1867.
(3) Whoever publishes any newspaper without making
a deposit under section 8 or section 10, when required so to do,
or publishes such newspaper knowing that such security has not
been deposited, shall, on conviction by a Magistrate, be liable to
the penalty to which he would be liable if he had failed to make
the declaration prescribed by section 5 of the Press and Registra-
tion of Books Act, 1867.
24. Where any person has deposited any security under
this Act and ceases to keep the press in res-
Return of deposited pg^t of which such security was deposited,
security in certain ^ . i i- i i it
cases. 01, being a publisher, makes a declaration
under section 8 of the Press and Regis-
tration of Books Act, 1867, he may apply to the Magistrate
within whose jurisdiction such press is situate for the leturn
of the said security ; and thereupon such security shall, upon
' proof to the satisfaction of the Magistrate and subject to the
provisions hereinbefore contained, be returned to such person.
25. Every notice under this Act shall be sent to a Magis-
trate, who shall cause it to be served in the
Service of notices. manner provided for the service of sum-
monses under the Code of Criminal Pro-
cedure, 1898.
272 THE LAW OF SEDITION.
26. Nothing herein contained shall be deemed to prevent
any person from being prosecuted under any
Operation of other .■> ^ c , • • , . .
laws not barred. other law lor any act or omission which
constitutes an offence against this Act.
PREVENTION OF SEDITIOUS MEETINGS ACT, 1911.
ACT X OF 1911.
PASSED BY THE GOVERNOR-GENERAL IN COUNCIL.
(Received the assent of tJie Governor-General on the 22nd
March 1911.)
An Act to consolidate and amend the law relating to the
prevention of public meetings likely to promote sedition or to
cause a disturbance of public tranquillity.
WHEREAS it is expedient to consolidate and amend the
law relating to the prevention of public meetings likely to pro-
mote sedition or to cause a disturbance of public tranquillity ; It
is hereby enacted as follows : —
1. {!) This Act may be called the
^''"'^il^it'''"'^"''' Prevention of Seditious Meetings Act,
1911.
{2) It extends to the Avhole of British India, but shall have
operation only in such Provinces or parts of Provinces as the
Governor- General in Council may from time to time notify in
the Gazette of India.
2. (i) The Local Government may, with the previous
sanction of the Governor- General in Council,
enfSto noti/y^pro: ^7 notification in the local official Gazette,
claimed aioas. declare the whole or any part of a Province,
in which this Act is for the time being in
operation, to be a proclaimed area.
(-) A notification made under sub-section (1) shall not re-
main in force for more than six months, but nothing in this sub-
section shall be deemed to prevent the Local Government, with
the previous sanction of the Governor- General in Council, from
making any further notifications in respect of the same area from
time to time as it may think fit.
3. (-?) In this Act, the expression " public meeting "
means a meeting which is open to the pub-
lic or any class or portion of the public.
2726 THE LAW OF SEDITION.
{■^) A meeting may be a public meeting notwithstanding
that it is held in a private place and notwithstanding that admis-
sion thereto may have been restricted by ticket or otherwise.
4. (1) No public meeting for the furtherance or discussion
of any subject likely to cause disturbance
^pubHc°meeMngs ""^ ^^ P"^^^^ excitement or for the exhibition or
distribution of any writing or printed mat-
ter relating to any such subject shall be held in any proclaimed
area —
•
(a) unless written notice of the intention to hold such
meeting and of the time and place of such meet-
ing has been given to the District Magistrate or
the Commissioner of Police, as the case may be,
at least three days previously ; or
(6) unless permission to hold such meeting has been ob-
tained in writing from the District Magistrate or
the Commissioner of Police, as the case may be.
(2) The District Magistrate or any Magistrate of the first
class authorized by the District Magistrate
Power of Magistrate i^ this behalf may, by order in writing,
to cause report to be j ' j o'
taken. depute One or more Police-officers, not being
below the rank of Head Constable, or other
persons to attend any such meeting for the purpose of causing
a report to be taken of the proceedings.
(-5) Nothing in this section shall apply to any public meet-
j,^ ,. ing held under any statutory or other ex-
press legal authority or to public meetings
convened by a Sheriff or to any public meetings or class of public
meetings exempted for that purpose by the Local Government
by general or special order.
5. The District Magistrate or the Commissioner of Police,
as the case may be, may at any time, by
p^ubtic me^e't^ngs! Order in writing of which public notice shalf
forthwith be given, prohibit any public
meeting in a proclaimed area if, in his opinion, such meeting is
.likely to promote sedition or disaffection or to cause a disturbance
of the public tranquillity.
APPENDIX. 272c
6. (^) Any person concerned in the promotion or conduct
of a public meeting held in a proclaimed
area contrary to the provisions of section 4
shall be punished with imprisonment for a term which may ex-
tend to six months, or with fine, or with both.
{3) Any public meeting which has been prohibited under
section 5 shall be deemed to be an unlawful assembly within the
meaning of Chapter VIII of the Indian Penal Code and of Chapter
IX of the Code of Criminal Procedure, 1898.
7. Whoever, in a proclaimed area, in a public place or a
place of public resort, otherwise than at a
Penalty for delivery public meeting held in accordance with, or
of speeches in public ...
places. exempted from, the provisions of section 4,
without the permission in writing of the
Magistrate of the District or of the Commissioner of Police, as
the case may be, previously obtained delivers any lecture, ad-
dress or speech on any subject likely to cause disturbance or
public excitement to persons there present, may be arrested
without warrant and shall be punished with imprisonment
for a term which may extend to six months, or with fine, or
with both.
8. No Court inferior to that of a Presidency Magistrate
or of a Magistrate of the first class or Sub-
offences, divisional Magistrate shall try any offence
against this Act.
9. The Prevention of Seditious Meetings Act, 1907, and
Repeals. *^^ Continuing Act, 1910, are hereby re-
pealed.
STATEMENT OF OBJECTS AND REASONS.
1. The Prevention of Seditious Meetings Act, 1907, which
was continued by the Continuing Act, 1910, until the thirty-first
day of March 1911, will expire on the last-named date unless
further continued. It is now deemed advisable, instead of mere-
ly continuing or making permanent the existing Act, to introduce
a Bill to consolidate and amend the law relating to the prevention
of public meetings likely to promote sedition or to cause distur
bance of public tranquillity.
2T2d THE LAW OF SEDITION.
2. The following are the main points in respect of which
the provisions of the Bill difier from those of the existing Act. —
Section 2. — Notifications of proclaimed areas, and the mak-
ing of further notifications are to be subject to the previous sanc-
tion of the Governor-General in Council.
Section 3. — Clause (3) of this section is omitted.
Section 4 (1). — The words " or of any political subject " are
omitted.
Section 4(1), (a) and (6). — The words " District Magistrate ' '
are substituted for the words " District Superintendent of Po-
lice."
Section 4 (2). — The words " The District Magistrate or any
Magistrate of the first class authorised by the District Magistrate
in this behalf " are substituted for the words " Any officer of
Police, not below the rank of an Inspector."
Section 7. — The words "or on any political subject " are
omitted.
J. L. JENKINS.
The lUh March 1911.
GENERAL INDEX.
Page.
122, 132— 1S5
122, 125—132
122—125
122—135
166, 172
33—39, 41
Abetment—
by aid
by conspiracy
by instigation
of sedition
of cognate offences
Act-
Age of Consent
Amending Penal Code , .
1—9, 60—69. 162—171
Dramatic Performances
186—188, 250
Lord Campbell's . . 88. 89, 96
Indian Press, of 1910 .. 262
Newspapers (Incitements),
of 1908 . . . . 258
Press and Registration of
Books, 1867 85—93,
182. 185,241
Prevention of Seditious
Meetings, 1907 133, 255
Security for good beha-
viour, 1898 .. 211,254
Vernacular Press, 1878 189—207
Vernacular Pi-ess Repeal-
ing, 1882 .. 207—210
Action or Acts—
of Government.
See Comments.
of persons,
See Gondnrt.
Adamson. Sir H.—
speech of, on Newspapers
(Incitements to Offences)
Bill . . 223—227
speech of, on Seditious
Meetings Bill 217—220
D, LS
Age of Consent-
See Art.
Almon—
trial of
Anaba Prasad—
case of
Page.
95
-58
Amendment—
of Criminal Pro. Code .. 211
of Penal Code 60—70, 163—173
of Press Act, 1878. . 203—207
Animus-
proof of
104—108, 132, 156
Arbuthnot, Sir A —
speech of, on Pi-ess Bill,
1878 .. .. 189—194
speech of, on amendment
of it
203—205
Appeal—
right of .,. 116, 117,
166, 167
Attempt —
defined
78
to excite disaffection
77—79
B.
Backergunge—
prohibited area of
.. 133
Baker, Sir B.—
remarks of
221
^
ande Mataram Case 82, 92,
112, 119, 145, 146
Bangobasi Case . . 33 — 41, 85,
102
i^,„.^rtabaha Cases 93, ]03,
106, 152—156, 167, 168
18
274
GENERAL INDEX.
Page.
Batty, Justice-
charge to jury of 143 — 144
observations of . . 74, 78, 82,
91, 101
Best, Justice-
dictum of .. .. 27,80
BhalaCase .. 140—144
Bhaskar—
trial of .. 90. 140—144
Bill-
See Ad.
Book-
seditious, defined . . 106
Bookseller-
liability of . . . . 95
Bose—
Apurba Krishna,
See Bande Mnfnrnm.
Jogendra Chandra,
See BangoboM.
Boycott-
gospel of . . . . . . 129
British India—
the Government of . . 32, 41
Buller, Justice-
dictum of
Burns-
trial of . .
76
21—29
C.
Canning, Lord-
speech of, on Press Bill 182
Cave, Justice-
charge to jury of 22 — 29
Chalmers, Hon'ble Mr.—
speeches of . . 60 — 65,
163—165, 109-171, 211
Chancellor, Ijord—
See Privy Coimc.U.
Chandavarkar, Justice—
obsei-vations of 106, 1.50, 215
Chidambaram Pillai s Case
126—132
Page.
Class -
of newspaper . . . . 40
of readers . . 40, 49
of audience .. 113,114
promoting enmity of 163 — 169
legislation . . . . . . 193
Cockburn, Sir A.—
dictum of . . . . 90
Code-
See Penal Code.
Collateral matter-
when admissible 104—108. 132
Cognate Offences
Collins, C. J., Sir A-
observations of .
Colvile, C. J., Sir C.
speech of . .
163—173
88
184
Comments-
on action of Government
15,48,71,98—101
on measures of Govern-
ment 1,3,7,9,30.48,98—101
Common Law-
scdition at . . 3, 4. 10—32
Conduct-
as evidence of intention
11, 18, 26—29
consequences of 14, 22. 27 — 29
Conspiracy-
seditious .. 11.29,126
See Abetment.
Cranbrooke, Lord-
remarks of, on Press Act 204
Criticism-
See Gommentfi.
Criminal Liability—
of persons taking part 84 — 97
joint and individual . . 84
of printer or publisher 85 — 93
when registered 85, 87, 88 — 91
when not registered . . 86
when publication is ad-
mitted . . . . 86
when publication is denied §
GENERAL INDBX.
275
y
PAaE.
Criminal Liability -eo.i((<.
of editor .. ..89,90
of bookseller . . . . 95
of news vendor . . . . 96
of librarian . . . . 96
of proprietor . . . . 85, 90
Criminal Procedure Code-
section 108 211, 254
D.
Deasy, Baron-
charge to jury of . . 20
Declaration—
under Press Act, 1867 . .
85—93, 181, 185, 242
Dictum—
of Lord Ellenborough . . 31
of Lord Esher . . . . 75, 94
of Lord Fitzgerald ..27, 111
of Lord Holt . . . . 31
of Lord Keuyou . . 15, 27
of Lord Mansfield .. 13,76
of Lord Tenterden . . 27, 81
of Sir A. Cockburn . . 9.0
of Sir M. Foster . . 13
of Best, J 27
of Bulbr, J 76
of Erskine, J 84
of Grose, J 126
of Willes, J 125
•isaflfection—
meaning of . . 39, 40, 47,
53—55, 59, 72—75
exciting 1.8,9,11,16,17,41.
48, 57, 58, 76
Disapprobation —
distinguished 1. 3, 39, 98—100
of Government measures
41, 48,54, 57, 71, 98—101
Disloyalty-
meaning of 47, 55, 58,73
Dramatic Performances -
See Act.
Page,
Eden, Sir Ashley-
spa ch of .. .. 197
Editor-
See Criminal Liability.
Edge, C J., Sir John-
observations of 55, 59, 74, 101,
105
Elgin, Lord-
speech of . . . , 70
English Law—
of sedition . . 3—6, 10—32
Ellenborough, Lord -
dictum of
Emmens v. Pottle-
case of
31,83
96
Evans, Sir G.—
speeches of . . 36, 67 — 69
196, 212—214
Esher, Lord-
on publication . . . . 75, 94
Explanation—
to former section 124 A 9, 47,
48, 54, 57, 59
to amended section 124 A
62, 63, 71, 72
Parran. C J., Sir C-
observations of 52 — 54, 74, 87,
'14,118
Fitzgerald, Lord-
charge to jury of ^ 12 — 19
cited . . 24^ 102, 198
Fletcher, Justice-
judgment of . . 156 — 162
Freedom-
See Libtrly.
G.
^Cranesh Damodar Savarkar—
appeal of 106, 150—162
General Exceptions— 9, 120
276.
GENERAL INDEX.
y
Ohose, Monmohan—
See Kannajogin.
Government-
meaning of . . 31, 82, 83
protected by section . . 82
sanction of ..9, 117—120
Gurakhi Case 89, 90, 136—139
H.
Hari Maiti—
trial of
.. 34,35
Halsbury, Lord-
See Privy Council.
Her or His Majesty—
See Sovereifjn.
History -
of Penal Law . .
.. 1—9
of Preventive Law
174—188
Hobhouse, Hon ble Mr.—
speech on Dramatic Per-
formances Act . . 186 — 188
speech on Press Act, 1867 185
Holt, Lord-
dictum of
Hossein—
See Lfukut.
Hunter, Sir W.-
speech on repeal of
Press Act
31,83
207—209
Indian Press Act. 1910-
provisions of, explained
229—234
events which led to 235—238
in relation to other laws 240
Incitements-
See Acl.
Intention—
evidence of 18, 26—28. 41, 49,
79—81
importance of 14, 16, 18, 25,
41, 49, 79—82
seditious 10,11,23,25
Page.
Jenkins, C J., Sir L.-
charges to jury of 137 — 139
observations of 74, 75, 77, 81,
89, 90, 100, 101, 103
Journalism-
Baron Deasy on . . 20
Lord Fitzgerald on 14, 15, 17
Sir James Stephen on 6 — 8
Sir L. Jenkins on . . 100
Justice Strachey on 98 — 100
Justice Batty on . . 101
Jugantar Case 92. 146-149
Jury-
functions of, in sedition
cases 15 — 17
character of, in 1822 . . 176
K.
Karmajogln Case 107, 156 — 162
15, 27
Kenyon. Lord
dicta of
Kesari-
See Tilak.
King-
See Sovereign.
Language—
index to intention.
See Condnrf.
seditious.
See Word''.
Lansdowne. Lord-
speech of . . . . 36. 37
Leakut Hossein's Case
105. 133—1.35, 168
Liability-
See CriwiiKil LIdhililif.
Liberty—
of Press 6, 14, 15, 20,
60, 67, 69, 196, 198
of spcccli .. .. 22
GENERAL INDEX.
277
Libel-
seditious
Licenses-
system of
Luxman s Case
Page.
10—20
179,181, 183, 185
89, 136—138
Page.
N.
Lytton, Lord—
Press Act of, in 1878 . . 189
speeches of 198—202, 205—207
M.
Macaulay, Lord-
draft Penal Code of . . 1—3
minutes of, in 1835 179—180
Mackenzie, Sir A.—
speech of . . . . 65 — 67
Manbir—
case of . . . . 172
Mansfield, Lord-
observations of . . . . 95
cited 13,76
Martin <. Trustees of
British Museum • • 97
Measures -
See Commpnti.
Meetings-
Seditious, Act . . 133, 255
attending . . . . 39
Metcalfe, Sir Charles -
minutes of, in 1835 179 — 181
Minto. Lord-
speeches of . . 222, 227
Mischievous Reports-
offence of circulating 169 — 172
Mitter, PhanendraiNath—
See Juganfar.
Monmohan Ghose—
case of,
See Karmajogin.
Munro, Sir Thomas-
minute of, on Indian
Press .. .. 174—178
.y
Native Press-
referred to .,. (i() — 09,
174—177, 182, 189—202,
206—213. 221, 223—228,
234—239
See Vernacular.
Newspapers Act—
(Incitements to Offences).
See Act.
News vendors-
liability of . . . . 9fi
Nugent, Hon'ble Mr.—
speech of . . . . 34
ulkar Rao Bahadur-
speech of . . . . 3,5
Offence-
cognate
of sedition
163-
173
-83
71
81.94
Onus—
of proving intention
under Press Act of 1867
85, 87, 90, 91, 92, 185
Ordinances 178, 179, 187, 217
Origin—
of penal law . . . . 1 — 9
of preventive law 174 — -179
P.
Parsons, Justice-
observations of 52. 54, 74
Paul. Sir Charles -
speech of, on Press Bill.
1878 .. .. |9.i_i90
cited in 1898 . . . . 68
Peacock Sir Barnes-
draft Penal Code of . . 1 — :j
letter of, to Mi-. Maine . . 2
remarks on Press Bill . . 184
Penal Code-
original draft of, in 1837
revised draft of, in 1857
amended in 1870
amended in 1898
Penal Law^
1,2
2,3
.. 2—9
60—70,
163—173
...1—173
278
GENERAL INDEX.
Page.
Petheram, C. J., Sir C—
cited . . . . 85, 91, 135
charge to jury of . . 39 — 41
observations of 71, 74, 79, 83,
85, 102, 140
Pigott-
trial of . . . . 12—20
Prated—
See Ramchandra.
Press—
legislation regarding 178 — 239
Preventive Law-
legislation regarding 174 — 240
Prinsep, Hon'ble Mr.—
minute of, in 1835 .. 180
Printer-
declaration by 85, 181, 185, 242
liability of . . 85—93, 185
security by . . . . 231
Printing Press-
declaration as to . . 181, 185
security for . . . . 231
Privy Council . • 42, 50
Proprietor-
of newspaper . . 85, 90
of printing press . . . . 230
See Criminal Liabilili/.
Publication-
defined . . . . 10, 75
importance of . . . . 75
Publisher-
declaration by 85—93, 181, 185
liability of . . 85—91, 185
security by . . . . 231
Punishment—
j udicial directions as to 1 14 — 1 16
rules as to . . 114, 116
Q-
Queen—
Sec Sovereign.
Race—
See Class.
Page.
Ramasami i^. Loltanada-
case of .. .. 87,91,92,97
Ramchandra Narayan—
appeal of . . 51 — 55, 87
Rampini, Justice-
charge to jury of . . 147 — 149
Ranade, Justice-
observations of 53,55,74,115
Regina or Rex -
V. Almon . . 95
V. Burdett .. 27
V. Brisac • . 126
V. Burns ..21—29
V. Cuthell .. 27
V. Cobbett .. 31
V. Collins .. 30
V. Hurse . . 84
V. Holbrook .. 89,90
V. Mulcahy . . 125
V. Tuchin . . 31
Registration-
system of . . 181, 182, 185
Ripon Lord-
remarks on repeal of Press
Act of 1878 .. .. 209
Risley, Sir H.—
speech of, on Press Act, 1910.
229—239
Roy, Beni Bhusan-
case of
Republication—
rule against
127, 214
14, 111, 112
Sanction—
of Government 9, ] 1 7 — 120,
131, 165, 172,212
Satara Case .. 51 — 55
Scoble, Sir A.—
speech of . . . . . . 34, 35
Sedition -
defined and analysed 71 — 83
per Lord Fitzgerald . . 13
per Stephen, J. . . 10, 11
in 'Russell on Crimes' .. 11,12
what is not .. 98—110
GENERAL INDEX.
279
Page.
Security—
lor good behaviour under
Press Acts 202, 211—215,
231, 263
Seditious Conspiracy-
See Conspiracy.
Seditious Meeting—
at Common Law . . 29
prevention of 217—222
See Art.
Seditious Libel -
at Common Law . . 10 — 20
Signs-
exciting disaffection by .. 7L 7"i
Slrkar, Joy Chandra-
See Bartnbahrt.
Sovereign-
sedition against 30, 71 , 73, 82
Speeches-
mode of proving . . 128, 215
Stage-
See Dmmatir Perfnrmaiires.
Statute Law—
as to sedition . . 3, 4. 5
Statements—
conducing to mischief 109 — 172
Stephen, Sir James-
definition of sedition 10, 1 1
speech on Bill in 1870 1—8
cited 22, 23, 29, 59, 61, 64, 79
Straehey, Justice-
charge to jury , . 46 — 50
observations of 59, 72, 74, 76,
77, 79. 80, 83, 85, 86, 98, 99,
100, 102, 109, 112, 117
cited 50, 93, 118, 119, 156, 160
Straehey, Sir John—
speecli of . . . . 197
Sullivan-
trial of .. .. 12—19
S-wadeshi—
preacher on .. 126,130.133
Swaraj or Swaraj y a—
per Cliandavarkar, J. . . 1 27
Page.
Swaraj or Swarajya-fo,(^/.
per Mitra, J. .. 127,215
per Sir A. White, C. J. 128
as rendered in Tilak's case 127
T.
Tenterden, Lord-
dictum of 27, 81
•Wlak-
trial of
42—50
Translations-
value of ... . . 109, 151
incorrect .. .. 152,153
V.
Vaman—
case of
216
Vernacular—
Preso Act, 1878 60, 66, 69
189—202
amendment of .. 203—207
repeal of . . .. 207—210
Vinayek—
trial of .. 90,136,138—140
Visible representations-
causing disaffection by 18,
71, 75, 70, 262
•w.
Wilson, Sir A.—
cited
34
White, C. J., Sir A.-
observations of 105, 120,
126—131
Words-
seditious 3,10,12.19.21—30,
71,75. 127—130. 133—135
Writing-
seditious
Yugantar—
See Jugantar,
. 10, 12,71,75
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